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Full text of "Readings in international law from the Naval War College review, 1947-1977 : the use of force, human rights and general international legal issues"

READINGS IN INTERNATIONAL LAW 



FROM THE NAVAL WAR COLLEGE REVIEW 



1947-1977 



For sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 

Stock No. 008-047-00304 8 



VS. NAVAL WAR COLLEGE 
INTERNATIONAL LAW STUDIES 

Readings in International Law from the 
Naval War College Review 1947-1977 

edited by 

Richard B. Lillich 

and 

John Norton Moore 



Volume 62 
(Volume II of Readings) 

The Use of Force, Human Rights 

and General International Legal Issues 




Naval War College Press 

Newport, Rhode Island 

1980 



Library of Congress Cataloging in Publication Data 

Main entry under title: 

Readings in international law from the Naval War 
College Review, 1947-1977. 

(U.S. Naval War College international law studies; v. 61-62) 

Includes bibliographical references and indexes. 

CONTENTS: v. 1. Role of international law and an evolving ocean law — 
v. 2. The use of force, human rights, and general international legal issues. 

1. International law — Addresses, essays, lectures. 2. Maritime law — 
Addresses, essays, lectures. I. Lillich, Richard B. II. Moore, John Norton, 
1937- III. United States. Naval War College. Naval War College 

Review. IV. Series: United States. Naval War College. International law 
studies; v. 61-62. 
JX1295.U4 vol. 61-62 [JX3091] 341s [341\08] 79-15091 



VOLUME II 

THE USE OF FORCE, HUMAN RIGHTS AND 
GENERAL INTERNATIONAL LEGAL ISSUES 

TABLE OF CONTENTS 
Chapter Page 

ACKNOWLEDGEMENTS vii 

INTRODUCTION ix 

Richard B. Lillich 

III THE USE OF FORCE (THE INTERNATIONAL LAW 

OF CONFLICT MANAGEMENT) 

A. Differentiating Permissible and Impermissible Coercion 

1. General 

International Law and the Use of Force 1 

Shabtai Rosenne 

International Law, the OAS and the 

Dominican Crisis 9 

Charles G. Fenwick 

U.S. Navy Regulations, International Law, 

and the Organization of American States 16 

Theodore K. Woods, Jr. 

Defining Aggression -United States Policy 35 

Rodney V. Hansen 

2. Intervention, Insurgency and Counterinsurgency 

Some Perspectives on Revolution 66 

Thomas B. Crassey 

Collective Intervention and the Law of the Charter 77 

Wilham 0. Miller 

Legal Aspects of Counterinsurgency 106 

J.F. Hogg 

Intervention and Detente in American Foreign Policy . . . .118 
Robert S. Wood 

3. Force Short of War (Minor Coercion) 

Forcible Self- Help under International Law 129 

Richard B. Lillich 



11 



Forcible Self- Help in International Law 139 

James J. McHugh 

Belligerency and Limited War 164 

William 0. Miller 

Blockade: Evolution and Expectation 172 

James F. McNulty 

Pacific Blockade: A Lost Opportunity of the 1930 's 197 

Walter R. Thomas 

B. The Laws of War: Human Rights for Settings of Violence 

1. General 

Combat Restraints 201 

Howard S. Levie 

The Law of War 209 

Richard R. Baxter 

The Geneva Conventions of 1949 220 

Richard R. Baxter 

The Law of War 233 

Robert W. Tucker 

Rules Governing the Conduct of Hostilities - 

The Laws of War and Their Enforcement 247 

Gerald I.A.D. Draper 

2. Conduct of Hostilities 

Law of Naval Warfare 263 

William 0. Miller 

Mine Warfare and International Law 271 

Howard S. Levie 

The Laws of Air Warfare: Are There Any? 280 

Hamilton DeSaussure 

3. Prisoners of War 

Prisoner and War Negotiations: 

The Korean Experience and Lesson 292 

Harry P. Ball 

Prisoners of War as Instruments of Foreign Policy 325 

Walton K. Richardson 



Ill 



Prisoners of War and the Code of Conduct 343 

William P. Lyons 

Motivational Factors of American Prisoners of War 

Held by the Democratic Republic of Vietnam 379 

Robert J. Naughton 

Experiences as a POW in Vietnam 392 

James B. Stockdale 

C. Personal Responsibility for Violation of 
Conflict Management Norms 

Yamashita, Nuremberg and Vietnam: 

Command Responsibility Reappraised 397 

Franklin A. Hart 

The Position of Individuals in International Law 415 

Herbert W. Briggs 

Military Justice: A Reinforcer of Discipline 426 

Robert S. Poydasheff 

D. Arms Control 

The Objectives of Arms Control 443 

James A. Barber, Jr. 

Soviet- American Arms Negotiations- 1960-68: 

A Prelude for SALT 452 

Eric W. Hayden 

What's Left of SALT? 470 

Richard T. Ackley 

The Submarine and the Washington Conference of 1921 . . . 477 
Lawrence H. Douglas 

E. Authority to Use the Armed Forces Abroad 

The National Executive and the Use 

of the Armed Forces Abroad 491 

John Norton Moore 

Presidential Control of Nuclear Weapons 

in Limited War Situations 502 

Hugh F. Lynch 

Destroyers for Naval Bases: 

Highlights of an Unprecedented Trade . 519 

William H. Langenberg 



IV 



F. The Control of Terrorism 

Nuclear Terrorism and the Escalation 

of International Conflict 532 

Forrest R. Frank 

Piracy in the Air 548 

James S.G. Turner 

IV HUMAN RIGHTS 

International Law and Basic Human Rights 579 

Rita E. Hauser 

International Law and Basic Human Rights 587 

Louis B. Sohn 

Asylum Denied: The Vigilant Incident 598 

Clyde R. Mann 

Legal Aspects of the Refusal of Asylum 

by U.S. Coast Guard on 23 November 1970 626 

Louis F.E. Coldie 

V GENERAL INTERNATIONAL LEGAL ISSUES 

A. Jurisdiction and Immunities 

Jurisdiction 634 

Myres S. McDougal 

Jurisdictional Immunities 646 

William C. McAuliffe, Jr. 

B. The Status of Armed Forces Abroad 

The International Law of the Armed Forces Abroad 667 

Gordon B. Baldwin 

Status of Armed Forces Abroad 676 

Wilfred A. Hearn 

The Status of Armed Forces Abroad 683 

Robert C Grabb 

C. Recognition 

Recognition of States and Governments 690 

Brunson MacChesney 

The Individual and International Law 701 

AlonaE. Evans 



D. Trusteeship Obligations 

The United Nations and Oceania: 

New Dimensions in the Cold War Refrain 714 

William 0. Miller 

BIOGRAPHICAL DESCRIPTION OF AUTHORS 729 

INDEX TO VOLUME II 741 



Vll 



ACKNOWLEDGEMENTS 

We would like to acknowledge our debt to Commander J. Ashley 
Roach and Commander Dennis McCoy who shepherded these volumes 
for the Naval War College with their usual applomb and impressive 
Navy efficiency. We are also indebted to Ms. Lisa Montgomery who did 
much of the initial editing necessary to move from selected Review 
articles to a two-volume collection of readings. Lisa's good spirit and 
charm under fire deserve a commendation traditionally awarded only to 
those in uniform. Above all, we would like to thank the Naval War 
College, whose interest in international law has made these readings 
possible, and the authors, whose thought and dedication is what it's all 
about. 



IX 



INTRODUCTION TO VOLUME II 

(The Use of Force, Human Rights and 
General International Legal Issues) 

by 

Richard B. Lillich* 

As my Brother Moore rightly suggests in his Introduction to Volume 
I, "some of the best writing on international law has appeared in the 
Naval War College Review." I need add only that "some of the best" of 
this "best writing" has been on the not unrelated subjects of the use of 
force and international human rights, the two areas upon which most of 
the contributions to this volume focus. Writing an Introduction to such 
a remarkable collection of articles presents an editor with two principal 
alternatives. Either he surveys the various contributions in "once-over- 
lightly" fashion -stressing their originality, taking issue with an occa- 
sional fine point, and attempting throughout to whet the reader's 
appetite for the intellectual fare to follow-or he ignores them entirely 
and produces an independent piece of scholarship on some topic 
supposedly of compelling interest. Actually, I intend to borrow a bit 
from both approaches, taking the views of the various contributors on 
two specific points -forcible self-help to protect nationals abroad and 
the impact of international human rights norms upon the U.S. foreign 
policy process -and weaving them with some of my own views into 
what hopefully will be an interesting, if not necessarily an avant garde, 
pattern. 

Forcible Self-Help to Protect Nationals Abroad 

Under the UN Charter, as Admiral Miller points out, member states 
foreswore the unilateral use of force in international relations save in 



*Howard W. Smith Professor of Law, University of Virginia, and President, 
Procedural Aspects of International Law Institute. Sometime Charles H. Stockton 
Chair of International Law, United States Naval War College. 



the case of self-defense. "There should be little doubt," he concludes 
from his examination of the relevant Charter provisions, "that 
unilateral, forcible self-help as an acceptable sanction in international 
law has been prohibited." 1 While it seems clear that it was the intention 
of the framers to achieve just this result, they also intended, as a quid 
pro quo to states for this surrender of a portion of their sovereignty, 
that the UN would take collective measures in the future to enforce 
compliance with the Charter's obligations. Such measures, as everyone 
knows, rarely have been taken. Indeed, it can be said without much 
overstatement that the Charter provisions in this regard have atrophied. 
Ambassador Rosenne, in a generally pessimistic assessment of the 
present state of the collective security concept, goes so far as to 
conclude that "the original scheme has failed, and its replacement has 
not yet begun to take clear shape." 2 The latter half of this compound 
sentence offers little comfort or guidance to the government planner, 
much less to the naval officer faced with an on-the-spot decision. 

To take as an example a situation which has occurred time and again 
in the past and undoubtedly will occur with some frequency in the 
future, what action can a state take to protect its nationals living in a 
foreign state when their lives are endangered by a complete breakdown 
of law and order in that state? Under customary international law, it 
was blackletter law that a state, invoking its right of forcible self-help, 
could send its navy and land its marines to protect the lives of its 
citizens in such a situation. Indeed, as Commander Woods points out in 
his scholarly article on the U.S. Navy Regulations covering this issue, 
from 1893 onward they specifically "tasked naval officers with the 
responsibility of exercising their independent judgment in the applica- 
tion of force to protect the lives and property of U.S. citizens on 
foreign soil against actual or impending arbitrary violence." 3 While the 
specific provisions discussed by Woods have been deleted from the 
1973 edition of the regulations -to be replaced by a somewhat opaque 
admonition that "[t]he use of force in time of peace ... is illegal 
except as an act of self-defense" 4 -his and several other articles 
contained in this volume contain useful analyses and helpful guidelines 
for decisionmakers in this area. 

If recent history is any guide, the problem of protecting nationals 
abroad will be one of particular concern to the U.S. for some time. The 
articles in this volume focus upon the three "classic" cases where the 
U.S. has used forcible self-help and defended the legality of its actions 
under international law in general and the UN Charter in specific -the 



1 Miller, "Collective Intervention and the Law of the Charter," page 77 of this 
volume at page 81. 

Rosenne, "International Law and the Use of Force," page 1 of this volume at 
page 7. 

Woods, "U.S. Navy Regulations, International Law, and the Organization of 
American States," at page 16 of this volume. 

For the full text of the applicable articles, see page xiv infra. 



XI 



landing in Lebanon in 1958, the Congo rescue operation in 1964, and 
the Dominican Republic action in 1965. Since their original publica- 
tion, moreover, other situations have arisen where forcible self-help 
either was used or contemplated -the Mayaguez incident and the 
evacuation of U.S. nationals from Iran being the most prominent 
examples. Varying the fact pattern somewhat, the rash of aerial 
hijackings -in which passengers are held hostage to the achievement of 
political, pecuniary or personal goals -has raised the same legal issues in 
a new and different context. Indeed, an examination of the Israeli raid 
on Entebbe in 1976 shows how the norms discussed in several articles 
in this volume have been used by the international legal community in 
appraising this use of forcible self-help. 

This Introduction is not the place to discuss the Entebbe raid in 
detail. Interested readers will find it considered at some length in my 
forthcoming monograph in the "Blue Book" Series-Forcible Self-Help 
to Protect Nationals Abroad. Suffice it to say that, given the 
well-known facts of Entebbe situation, nearly all commentators have 
approved the Israeli rescue operation and considered it a valid exercise 
of the right of forcible self-help which they consider still exists under 
contemporary international law. 5 In the Security Council debate that 
followed Entebbe, the U.S. once again reaffirmed its recognition of a 
state's right to take forcible steps to protect its nationals abroad. 

Israel's action in rescuing the hostages necessarily involved a 
temporary breach of the territorial integrity of Uganda. Nor- 
mally, such a breach would be impermissible under the Charter of 
the United Nations. However, there is a well established right to 
use limited force for the protection of one's own nationals from 
the imminent threat of injury or death in a situation where the 
state in whose territory they are located is either unwilling or 
unable to protect them. The right, flowing from the right of 
self-defense, is limited to such use of force as is necessary and 
appropriate to protect threatened nationals from injury. 6 



5 Green, "Rescue at Entebbe-Legal Aspects," 6 ISRAEL Y.B. HUMAN 
RIGHTS 312 (1976); Knisbacher, "The Entebbe Operation: A Legal Analysis of 
Israel's Rescue Action," 12 J. INT'L L. & EC. 57 (1977); Krift, "Self-Defense and 
Self-Help: The Israeli Raid on Entebbe," 4 BROOKLYN J. INT'L. L. 43 (1977); 
Salter, "Commando Coup at Entebbe: Humanitarian Intervention or Barbaric 
Aggression?" 11 INT'L LAW. 331 (1977); and Note, "Use of Force for the 
Protection of Nationals Abroad: The Entebbe Incident," 9 CASE W. RES. J. 
INT'L. 117 (1977). Compare Sheehan, "The Entebbe Raid: The Principle of 
Self-Help in International Law As Justification for State Use of Armed Force," 1 
FLETCHER FORUM 135 (1977) (recommends new concept of "rectification"), 
with Paust, "Entebbe and Self-Help: The Israeli Response to Terrorism," 2 
FLETCHER FORUM 86 (1978) (urges retention of traditional concept of 
self-help. 



6 31 U.N. SCOR (1941st mtg.) 31, U.N. Doc. S/p.v. 1941 (1976). 



\11 



Note that this right, while stoutly defended, is described only as one 
"flowing from the right of self-defense. ..." Can and should it not be 
defined with more precision? 

The answer obviously is in the affirmative. A quick glance at several 
of the articles in this volume provides some definitional help, more, it 
must be added, than most of the legal literature on Entebbe. 7 
Parenthetically, it is worth noting that this literature nowhere cites or 
otherwise makes use of these articles which had appeared some years 
before in the Naval War College Review. Such research oversights, 
understandable in view of the fact that not all nonmilitary authors have 
ready access to the Review, hopefully will occur with diminishing 
frequency now that the present two volumes are in print. Thus the 
articles discussed immediately below should have considerable impact 
upon the protection of nationals debates in coming years. 

Take, for instance, the previously-mentioned article by Admiral 
Miller. As we have seen, contrary to the stereotype of military lawyers 
held by many civilians, Miller ends his textual analysis of the impact of 
the UN Charter upon the customary norms governing the protection of 
nationals abroad with a conclusion which not all government decision- 
makers, military or otherwise, will welcome: namely, that the Charter 
prohibits forcible self-help. 8 The counterweight to this prohibition, he 
proceeds to relate, is the substitute of collective action by the UN. Yet 
Miller, unlike some international lawyers who focus their eyes on the 
text of the Charter almost exclusively, 9 is not unaware of the principle 
that the subsequent conduct of parties to a treaty is relevant to its 
interpretation. "Whether or not the charter has constructed collective 
machinery adequate to [its] purpose," he rightly observes, 

is quite another question and, it would seem, a most crucial one. 

For if the promised substitute for unilateral action is not 

forthcoming, states could hardly be expected to refrain from 

developing other procedures and perhaps from even falling back 

to their prior practice of unilateral forcible self-help. ... It is 

abundantly clear from current international practice that this 

process has long since begun. 1 ° 

One example he cites is the Dominican Republic. While not taking a 

position himself on whether the U.S.'s actions were legal or not-once 

again demonstrating his independence from the official line taken by 

the U.S. Government at the time-he does note that many com- 



«7 

See note 5 supra. An exception is Paust's short comment. 

See text at note 1 supra. 

9 See, e.g., Brownlie, "Thoughts on Kind-Hearted Gunmen," in 
HUMANITARIAN INTERVENTION AND THE UNITED NATIONS 139 (R. 
Lillich ed. 1973). Compare Brownlie, "Humanitarian Intervention," in LAW AND 
CIVIL WAR IN THE MODERN WORLD 217 (J.N. Moore ed. 1974), with Lillich, 
"Humanitarian Intervention: A Reply to Dr. Brownlie and a Plea for Constructive 
Alternatives," in LAW AND CIVIL WAR IN THE MODERN WORLD 229 (J.N. 
Moore ed. 1974). 

10 Miller, supra note 1, at 80. 



Xlll 



mentators have called the initial landing of marines to protect and 
evacuate U.S. nationals "a legitimate exercise of unilateral self-defense 
or unilateral forcible self-help for humanitarian purposes." 1 1 Since his 
article concerns the legitimacy of collective action by regional 
organizations, he does not venture to define these two concepts or 
clarify the criteria for their invocation. 

This task is attempted with some success by Commander Woods. 
While never explicitly distinguishing between the two concepts, he 
repeatedly makes clear his belief that unilateral forceful action to 
protect nationals abroad can be justified under contemporary interna- 
tional law only if such action is deemed "to be encompassed within the 
concept of self-defense." 1 2 Using these criteria formulated by Judge 
Waldock-"(l) an imminent threat of injury to nationals, (2) a failure 
or inability on the part of the territorial sovereignty to protect them 
and (3) measures of protection strictly confined to the object of 
protecting them against injury" 13 -he concludes that "the original 
limited intervention in the disorders of the Dominican Republic on 28 
April 1965 to protect U.S. citizens from imminent danger in a situation 
of anarchy did not violate standards of customary international law." 1 4 
Woods claims support for this conclusion from Article 0614 of the U.S. 
Navy Regulations of 1 948, then in force, which under the rubric of the 
"right of self-preservation" specifically authorized (and, indeed, man- 
dated) the use of force to protect "the lives and property of [U.S.] 
citizens against arbitrary violence, actual or impending. ..." 

In the best tradition of the Navy JAG, however, Commander Woods 
does not accept the authoritativeness of the above article unquestion- 
ably, always a prudent approach and an especially wise one in this case 
in view of the fact that the article had remained unchanged since the 
late Nineteenth Century. J 5 Reviewing it against contemporary interna- 
tional law, he finds it no longer completely compatible and hence urges 
the Navy 

to update article 0614 to conform to modern standards of 
customary international law. It is suggested that this can be 
accomplished by the simple expediency of deleting any reference 



11 Id. at 96. 

1 2 

Woods, supra note 3, at 30. 

1 3 

Waldock, "The Regulation of the Use of Force by Individual States in 

International Law," 81 RECUEIL DES COURS (Hague Academy of International 

Law) 455, 467 (1952-11). 

Woods, supra note 3, at 26. 

See text at note 3 supra. "Your present [pre-1973] Navy Regulations I was 
able to trace . . . back to 1893. They are almost in haec verba now with what they 
were in 1893. Since then we have had the Hague Convention, the League of 
Nations, the Kellog-Briand Pact, and the United Nations Charter. I gently 
[suggest] that it might be a good idea to reassess these sections of the Navy 
Regulations to see whether they [are] in conformity with international law . . . ." 
Lillich, "Forcible Self -Help Under International Law," page 129 of this volume 
at page 1 33. 



XIV 



to "property" and substituting the words "self-defense" for the 

outmoded language "self-preservation" wherever the latter 

appears. Additionally, bearing in mind the serious international 

consequences that an application of force could entail, it is 

suggested that specific operation orders be written with a view 

toward giving commanding officers definitive guidance in the 

enforcement of this right, emphasizing the concept of evacuation 

over all other means of protection. 1 6 

His call here fell on receptive ears, for the 1973 edition of the 

regulations not only shifts the juridical rationale for the use of force 

from self-preservation to self-defense, but also eliminates any reference 

to protecting the "property" of U.S. nationals. The new regulations 

provide as follows: 

0914. Violations of International Law and Treaties. 

On occasions when injury to the United States or to citizens 
thereof is committed or threatened in violation of the principles 
of international law or in violation of rights existing under a 
treaty or other international agreement, the senior officer present 
shall consult with the diplomatic or consular representatives of 
the United States, if possible, and he shall take such action as is 
demanded by the gravity of the situation. In time of peace, action 
involving the use of force may be taken only in consonance with 
the provisions of the succeeding article of these regulations. The 
responsibility for any application of force rests wholly upon the 
senior officer present. He shall report immediately all the facts to 
the Secretary of the Navy. 

0915. Use of Force Against Another State. 

1. The use of force in time of peace by United States naval 
personnel against another nation or against anyone within the 
territories thereof is illegal except as an act of self-defense. The 
right of self-defense may arise in order to counter either the use 
of force or an immediate threat of the use of force. 

2. The conditions calling for the application of the right of 
self-defense cannot be precisely defined beforehand, but must be 
left to the sound judgment of responsible naval personnel who are 
to perform their duties in this respect with all possible care and 
forebearance. The right of self-defense must be exercised only as 
a last resort, and then only to the extent which is absolutely 
necessary to accomplish the end required. 

3. Force must never be used with a view to inflicting 
punishment for acts already committed. 

Like its predecessor, however, Article 0915(2) does not spell out 
satisfactorily the criteria to be used in determining when force may be 
used to protect U.S. nationals. Instead, on the ground that "[t]he 
conditions calling for the application of the right of self-defense cannot 
be precisely defined beforehand," it leaves the decision "to the sound 
judgment of responsible naval personnel who are to perform their 



Woods, supra note 3, at 30. 



XV 



duties in this respect with all possible care and forebearance. " From 
whence, then, is the naval commander (or operations order writer or 
other decisionmaker) to get the "definitive guidance" Woods states- 
and everyone must agree -he needs? 

Considerable help is provided by Captain McHugh in his article 
"Forcible Self-Help in International Law." 17 As his title indicates, 
unlike Miller, who straddles the question, and Woods, who opts for the 
self-defense theory, McHugh adopts the forcible self-help rationale to 
justify the protection of U.S. nationals abroad. In this respect he joins 
company not only with me, * 8 but with Professor Myres S. McDougal, 
one of the leading U.S. international lawyers of this century and the 
distinguished co-author of the leading treatise on the use of force in 
international law. 19 In an article in the Naval War College Review, 
reprinted in Volume I, McDougal graphically demonstrates how his own 
thinking on forcible self-help has shifted in light of post- Charter state 
practice. The importance of his views warrants the following quotation 
of unaccustomed length: 

It has been argued . . . that only two kinds of uses of force, 
transnational force, are now authorized. One is the self-defense 
that is authorized under article 51, the other is the collective 
police action of the organization which is authorized in chapter 
VII of the Charter. I'm ashamed to confess that at one time I lent 
my support to the suggestion that article 2(4) and the related 
articles did preclude the use of self-help less than self-defense. On 
reflection, I think that this was a very grave mistake, that article 
2(4) and article 51 must be interpreted differently. . . . 

[T]he first important fact is that the machinery for collective 
police action projected by the Charter has never been imple- 
mented. We don't have the police forces for the United Nations, 
the collective machinery that was expected to replace self-help. In 
other words, there has been a failure in certain of the major 
provisions for implementing the Charter. 

If, in the light of this failure, we consider how we can 
implement the principal purposes of minimizing coercion, of 
insuring that states do not profit by coercion and violence, I 
submit to you that it is simply to honor lawlessness to hold that 
the members of one state can, with impunity, attack the 
nationals -individuals, ships, aircraft or other assets— of other 
states without any fear of response. In the absence of collective 
machinery to protect against attack and deprivation, I would 
suggest that the principle of major purpose requires an interpreta- 
tion which would honor self-help against prior unlawfulness. The 
principle of subsequent conduct certainly confirms this. . . . 



17 McHugh, "Forcible Self-Help in International Law," at page 139 of this 



volume 
18 



See note 1 5 supra 

McDougal & Feli 
THE LEGAL REGULATION OF INTERNATIONAL COERCION (1961) 



19 McDougal & Feliciano, LAW AND MINIMUM WORLD PUBLIC ORDER: 



XVI 



Hence, if I had the opportunity to rewrite the book with Mr. 
Feliciano in which we mildly questioned the lawfulness of 
self-help less than self-defense, I think I would come out with a 
different conclusion, as many people have. 20 
While McHugh does not cite this extract in his own article, his analysis 
obviously was influenced by McDougal, whose treatise he relies upon 
heavily. 

McHugh 's primary contribution, however, is his refinement of 
various criteria, which Professor Richard A. Falk first advanced 10 
years ago, by which the legality of a state's claim of forcible self-help 
may be judged. Under these criteria, the use of force by states may 
be acceptable provided: 

-That acts of provocation by the target state have raised an 
imminent and significant threat to the continued existence of a 
nation's political independence and/or territorial integrity. 
-That, if possible, a diligent effort has been made to obtain 
satisfaction by pacific means. 

-That recourse to international organizations is had as prac- 
ticable. 

-That a state accepts the burden of persuasion and makes a 
prompt explanation of its conduct before the relevant organ of 
community review, showing a disposition to accord respect to its 
will. 

-That the acting state's purpose cannot be achieved by acting 
within its own territory. 

-That the use of force is proportional to the provocation and 
directed against military and paramilitary targets and clearly 
indicates the contours of the unacceptable provocation. 
-That the user of force continues to seek a pacific settlement of 
the underlying dispute on reasonable terms. 22 
Applying these criteria to the Dominican Republic action, McHugh 
thinks the initial landings to protect and evacuate U.S. nationals pass 
international muster. "It is submitted," he suggests, "that intervention 
for this purpose in the future would be hard to fault." 2 The 
conclusions reached by the commentators on Entebbe bear him out. 



20 McDougal, "Authority to Use Force on the High Seas," 20 NAVAL WAR 
COLLEGE REV. 19, 28-29 (Dec. 1967), at page 551 of Volume I of these 
reprints. 

21 Falk, "The Beirut Raid and the International Law of Retaliation," 63 AM. 
J. INT'L L. 415, 441-42 (1969). Other criteria, specifically formulated for the 
protection of nationals context, may be found in Nanda, "The United States' 
Action in the 1965 Dominican Crisis: Impact on World Order— Part I," 43 
DENVER L.J. 439, 475 (1966); Lillich, "Forcible Self-Help to Protect Human 
Rights," 53 IOWA L. REV. 325, 347-51 (1967); and Moore, "The Control of 
Foreign Intervention in Internal Conflict," 9 VA. J. INT'L L. 205, 264 (1969). 

22 McHugh, supra note 17, at 154. 

23 Id. at 152. 

24 

See note 5 supra. 



XV11 



The several articles discussed above constitute, in my opinion, a 
most valuable contribution to a topic of great complexity and 
continuing importance. They have been instrumental, as has been seen, 
in bringing the Navy Regulations into line with contemporary interna- 
tional law. Moreover, they raise issues of policy and suggest criteria for 
decision that will prove highly useful in coming years to policy planners 
and naval officers alike. Their republication herein will assure them of 
the wide audience they deserve. 

International Human Rights Norms 
and the U.S. Foreign Policy Process 

Turning to the articles in this volume which touch upon interna- 
tional human rights, one is struck both by their number and the wide 
range of issues they cover. Perhaps that is because under the Carter 
Administration our consciences have been raised about the issue of 
human rights, not only at home but also abroad. Yet the concern for 
human rights, somewhat paradoxically in the view of some civilians, 
always has been prominent among members of the naval profession. 
Forcible self-help to protect nationals abroad, after all, is no more than 
the rudimentary procedure by which states seek to protect the 
substantive human rights -the most basic of which is the right to life 
itself— of individuals. Human rights factors are influential if not 
necessarily controlling in a host of other international law fields as well. 
Professor Louis Sohn, at the outset of his article on "International Law 
and Basic Human Rights," correctly states that: 

[t]his is an area of international law in which, over the years, we 
developed perhaps more law than in other areas. If you look at 
the jurisprudence of international tribunals, you discover that 
more cases deal with problems of human rights than with rights 
and duties of states themselves. 2 5 

In addition to the traditional international law governing the 
Responsibility of States for Injuries to Aliens, upon which Sohn 
focuses, the other major body of law concerned with human rights in 
pre-Charter days was the Law of War. Few if any international lawyers 
would dissent from Professor Tucker's assertion that "the traditional 
law of war [was] one of the most worthwhile achievements of the 18th 
and 19th centuries...." 26 Beginning just over a century ago and 
culminating in the four Geneva Conventions of 1949 (soon to be 
supplemented by the two Geneva Protocols of 1977), a vast body of 
substantive and procedural law came into being, the purpose of which 
was to regulate and humanize the conduct of armed conflict. This body 
of law, ably canvassed by Professor Gerald Draper, 2 7 arose from the 



25 

Sohn, "International Law and Basic Human Rights," at page 587 of this 

volume. 

26 Tucker, "The Law of War," at page 233 of this volume. 

27 

Draper, "Rules Governing the Conduct of Hostilities— The Laws of War and 

Their Enforcement," at page 247 of this volume. 



XV1U 



concern to protect, insofar as it is possible in wartime, the human rights 
of individuals, whether combatants or civilians. As Judge Baxter 
explains, 

[t]he reason for the application of law in this area is to be found 

in a fundamental human response to warfare and human misery. 

We realize that even though millions may be suffering, this offers 

no justification to add one more person to that group if injury to 

him can be avoided. To find the basis for this, you must go back 

to the respect for human dignity and for the worth of the 

individual, which is the foundation of civilization itself. 2 8 

The Law of War covers a vast range of subjects, most of which 

receive treatment in this volume. The articles by Baldwin, Grabb and 

Hearn together comprise a comprehensive study of the Status of Forces 

Agreements, a major purpose of which is to guarantee U.S. military 

personnel garrisoned abroad procedural due process should they be 

tried in foreign courts. Several articles, including one by the President 

of the Naval War College, Admiral Stockdale, raise legal and other issues 

concerning the treatment of prisoners of war in Vietnam; of especial 

interest is Commander Naughton's psychological portrait of the U.S. 

POW, which describes the stresses to which they were subjected and the 

creative responses by which they resisted enemy pressure. 29 Other 

articles treat specific types of weapons and warfare (DeSaussure on air 

warfare, Levie on mine warfare, and Miller on naval warfare). Professor 

Levie, in a short but meaty article entitled "Combat Restraints," 30 

examines the four specific areas of military necessity, reprisals, 

protection of civilian noncombatants and protection of POWs. "The 

problem in this area," he concludes, "is not lack of law, it is lack of 

compliance with the law." 3 1 

Enforcing the law in this area is a problem, as it is in other areas of 
international law where human rights concerns are manifest. "If the 
international law of war is to accomplish anything," writes Baxter, "if 
real restraints are to be placed upon violence in warfare, the wrongdoer 
must be held criminally accountable for violations of the law." 32 The 
difficulty with following this prescription is that no international court, 
as Professor Briggs' review of the Nuremberg Tribunal established after 
World War II reminds us, exists to try alleged war criminals, and that 
(pace Colonel Poydasheff ) the use of courts-martial to try the My Lai 
defendants clearly demonstrates, at least in my opinion, that the 
process by which an offender is tried by his or her own military 
establishment has not yet been made to "work." In view of the 
well-known facts about My Lai, which led to only six prosecutions and 



28 Baxter, "The Law of War," page 209 of this volume at page 212. 

29 Naughton, "Motivational Factors of American Prisoners of War Held by the 
Democratic Republic of Vietnam," at page 379 of this volume. 

30 Levie, "Combat Restraints," at page 201 of this volume. 

31 Id. at 207. 

32 

Baxter, supra note 28, at 213. 



XIX 



but one conviction, that of Lieutenant Calley, who is now free on 
parole, it simply "boggles the mind" to be told that "the My Lai cases, 
posing the problem they did, were properly and correctly resolved by 
the U.S. Army." 33 

Enforcing the Law of War by prosecuting alleged wrongdoers 
presents some legal as well as administrative problems. In the forefront 
are the interrelated issues of command responsibility and superior 
orders. (In the My Lai cases, it will be recalled, Captain Medina argued 
that he was not responsible for the crimes Calley and his men 
committed since he [Medina] had no actual knowledge of their acts; 
Calley, conversely, claimed that he merely was carrying out Medina's 
orders and hence was not responsible himself.) 

Insofar as command responsibility is concerned, military com- 
manders obviously are responsible for war crimes when the acts in 
question were committed by their men pursuant to their orders. 
Moreover-and here I quote, inter alia, from Paragraph 501 of The U.S. 
Army Field Manual 27-10, The Law of Land Warfare -a commander 
is also responsible if he has actual knowlege, or should have 
knowledge, through reports received by him or through other 
means, that troops or other persons subject to his control are 
about to commit or have committed a war crime and he fails to 
take the necessary and reasonable steps to insure compliance with 
the law of war or to punish violations thereof. (Emphasis added.) 
The italicized phrase, which reflects the rule of broad if not absolute 
command responsibility applied in the Yamashita Case, 34 is a key 
factor in the enforcement of the law of war since it in effect requires 
affirmative action by the commander, action which if taken will reduce 
the likelihood of the law's violation. The surprising failure to charge the 
court members correctly in the case of Captain Medina, who was found 
not guilty after a charge repeatedly emphasizing that his actual 
knowledge of the acts of Calley and his men at My Lai was necessary 
for conviction, constitutes a retreat from the standards of Yamashita 
and Field Manual 27-10. 

Joining this unfortunate retreat is Colonel Hart, whose enterprising 
search into' the unpublished records of the Board of Review in 
Yamashita reveals that the five army officers sitting on it clearly 
thought that the evidence submitted to the Military Commission which 
tried the General connected him with actual knowledge of the activities 
for which he eventually paid with his life. Since, as Hart points out, 
"[t]he Military Commission failed to address the question of knowl- 
edge explicitly," 35 what he calls "the so-called Yamashita principle" 36 



33 

Poydasheff, "Military Justice: A Reinforcer of Discipline," page 426 of this 

volume at page 432. 

OH In re Yamashita, 327 U.S. 1 (1946). 

35 

Hart, "Yamashita, Nuremberg and Vietnam: Command Responsibility 

Reappraised," page 397 of this volume at page 404. 
36 Id. at 412. 



XX 

emerged. In fact, he argues, it "does not exist legally." 37 This 
interesting attempt to rewrite legal history seems plausible at first 
glance, but it runs counter to what has emerged as the accepted -and 
desirable -rule of command responsibility. Moreover, it clearly conflicts 
with the above-quoted paragraph of Field Manual 27-10, which the 
author nowhere cites. 

With respect to the defense of superior orders, Paragraph 509(a) of 
the Field Manual restates the accepted rule, namely, that they do not 
constitute a defense in the trial of an accused individual, unless he 
did not know and could not reasonably have been expected to 
know that the act ordered was unlawful. 
The defense did not save Lieutenant Calley in his court-martial, as 
Colonel Poydasheff explains, because the presumed order of Captain 
Medina could not have been considered valid, and because "Calley 
should have known that killing unarmed, unresisting men, women, and 
children was illegal." 38 In my opinion, Poydasheff, in his attempt at "a 
reconciliation of law and military ethics," goes too far in favor of the 
latter when he parses Calley to read that "the servicemember is bound 
only to refuse patently illegal orders or those that he personally knows 
are illegal." 39 This gloss of Paragraph 509(a), which the author does 
not cite [although he does quote in full the explanatory and seemingly 
more exculpatory Paragraph 509(b)], reflects a more lenient attitude 
toward the alleged wrongdoer than is desirable if a serious effort to 
enforce the law of war by means of individual responsibility is to be 
maintained. 

Whether this approach is workable in any event is an issue raised by 
Draper. 

On balance I am inclined to think, after a long and somewhat 
painful experience in war crimes forums, that the moral, social, 
and disciplinary effects of thorough instructions in the law of war 
in general, and in the Geneva Conventions of 1949 in particu- 
lar, . . . may in the long run prove more persuasive of law 
observance and dissuasive of its breach than the execution or long 
imprisonment of war criminals. 

. . . Instruction in the law of war and the humanitarian code of 
conduct enjoined thereby, render the recipient aware that there 
are permanent legal norms, based upon the moral, humane, and 
rational order, which transcend municipal laws and superior 
orders at variance with or denying that order. Governments which 
fail to give that instruction in the law of war now required by the 
law of war render their armed forces and civil population and the 
entire community of civilized men and women, a gross disservice 
which posterity will not fail to condemn. Governments have been 
given full and adequate warning. Let them disregard it at their 
peril. 40 



31 id. 

38 Poydasheff, supra note 33, at 434. 

39 Id. at 435 (emphasis added). 
40 Draper, supra note 27, at 261-62. 



XXI 



These prophetic words, written at the beginning of the Vietnam War, 
unfortunately were not heeded initially and one result was My Lai. 
Subsequent improvements in educating servicemen in the law of war 
have been far more successful, and if continued and improved should 
supplement if not supplant traditional methods of enforcement. 

In an entirely different area, where human rights concerns once 
again directly impact upon the duties and responsibilities of the naval 
officer, Colonel Mann 41 and Professor Goldie 42 both recount the 
unsuccessful attempt by a Lithuanian seaman on a Soviet ship to obtain 
political asylum aboard the U.S. Coast Guard cutter Vigilant in 
November 1 970. Although the seaman was able to make it aboard the 
cutter, a Soviet boarding party subsequently was permitted to remove 
him by force. Clearly this summary denial of asylum violated the U.S.'s 
obligations under the Protocol Relating to the Status of Refugees, 43 
and the officers concerned paid the price in reprimands, retirements 
and shore duty. Although there was no Coast Guard regulation in force 
concerning the granting of asylum, 44 the various persons concerned in 
making the unfortunate decision would have received woefully mis- 
leading guidance from Article 0621 of the Navy Regulations of 1948, 
then in force, which opened with a flatly wrong sentence stating that 
"[t]he right of asylum for political or other refugees has no foundation 
in international law." Clearly, the above Protocol being the supreme 
law of the land under the U.S. Constitution, Article 0621 was void, 
invalid and in need of revision. Goldie 's suggested revisions were 
adopted almost lock, stock and barrel in Article 0940 of the 1973 
edition of the regulations, 45 demonstrating once again the action- 
oriented thrust of many of the articles in this volume. 4 6 

Bringing order to one's own house is a major human rights concern, 
and by so doing the U.S. strengthens its hand when it comes to 
asserting human rights claims against other countries. Ambassador 
Hauser, in an insightful article on "International Law and Basic Human 
Rights," 47 makes a strong plea for the U.S. to ratify the various human 
rights treaties which it signed, some of which have been pending in the 
Senate for over three decades. She is not particularly optimistic on this 



4 1 

Mann, "Asylum Denied: The Vigilant Incident," at page 598 of this volume. 

42 

Goldie, "Legal Aspects of the Refusal of Asylum by U.S. Coast Guard on 

23 November 1970," at page 626 of this volume. 

Protocol Relating to the Status of Refugees, signed Jan. 31, 1967, entered 
into force Oct. 4, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 267. 
The protocol incorporates by reference the substantive provisions of the 
Convention Relating to the Status of Refugees, opened for signature July 28, 
1951, entered into force Apr. 22, 1954, 189 U.N.T.S., which the U.S. had not 
ratified. 

44 

Mann, supra note 41, at 618. 

45 Goldie, supra note 42, at 38-39. 

46 

See text at notes 15-17 supra. 

47 

Hauser, "International Law and Basic Human Rights," at page 579 of this 

volume. 



\X11 



score, pointing out that "while a good number of our Senators find it 
quite correct to comment publicly on the treatment, let us say, of Jews 
by the Soviets, Ibos by the Nigerians, or Anguillans by the British, they 
cannot accept the idea that the rest of the world would see fit to 
comment on the way in which our Government treats its own 
citizens." 48 The attitude she describes not only is logically inconsis- 
tent, but it is shortsighted as well. The U.S. has little to lose and much 
to gain by supporting human rights claims both here and abroad. 
Baxter, writing about respect for the law of war, makes a similar point. 
"I think you will agree with me, " he states, 

that one of the great objectives of the United States and of the 
West in the long-range struggle in which we are engaged is the 
establishment for the entire world of the rule of law. If we 
ourselves do not adhere to that standard and demand compliance 
with the rule of law by those who may be arrayed against us, we 
will have abandoned one of the vital objectives we are bent upon 
attaining. 49 

The full impact of international human rights norms on the U.S. 
foreign policy process is just beginning to be felt. 50 It is appropriate 
that President Carter, a former naval officer, has been the single most 
important person in bringing this situation to pass. The articles 
mentioned in this volume contain a host of useful data and ideas about 
the role that international law, and especially international human 
rights law, can play in the shaping of a defense and foreign policy that 
will protect the national security needs of the U.S. while simul- 
taneously contributing to the development of a just and stable 
international legal order. 



Richard B. Lillich 

Howard W. Smith Professor of Law 



University of Virginia 
Charlottesville, Virginia 
March, 1979 



48 Jd. at 583-84. 



49 Baxter, supra note 28, at 218-19. 

50 See Vogelgesang, "What Price Principle? U.S. Policy on Human Rights," 56 
FOR. AFF. 819 (1978). See generally Schlesinger, "Human Rights and the 
American Tradition," 57 FOR. AFF. 503 (1979). For a survey and evaluation of 
how the U.S. can best put its human rights policy into practice, see Lillich, "The 
United States Policy of Humanitarian Intervention and Intercession," in HUMAN 
RIGHTS AND AMERICAN FOREIGN POLICY 278 (D. Kommers & G. Loescher 
eds. 1979). 



INTERNATIONAL LAW AND THE USE OF FORCE 



Shabtai Rosenne 



If international law is conceived as a 
standard-setting regulatory pattern for 
the normal conduct of states towards 
one another, the question of interna- 
tional law and the use of force-of the 
relationship between law in force- 
helongs not to its static parts, but rather 
to a more dynamic and, truth to tell, 
less clearly regulated area. Here the 
essential problem is to balance the 
dictates of a civilizing, outward-looking, 
standard-setting agency with the over- 
riding introspective requirements of 
national security and self-defense. That 
is the real problem which force and the 
threat or use of force pose for interna- 
tional law. It is, moreover, the intrac- 
table nature of that conflict which leads 
many to the mistaken view that when 
reduced to fundamentals, international 
law is either unimportant or, at best, 
belongs to the category of moral stan- 
dards and not those of law in the sense 
of imperatives. This dilemma is similar 
to that referred to in a recent article in 
the New Yorker (7 September 1968) on 
the trial of Dr. Spock where the follow- 
ing sentence appears: 'The case was 
simply too palpably entwined with con- 
troversial political issues-with the ques- 
tion of dove versus hawk-for its legal 
form and its social content to be sepa- 
rable. " That sentence also utters the 
words of caution against the banality 
which is all too frequent in legal and 
political science literature dealing with 
the vexed problem of force. Kor it can 
be taken for granted that no responsible 



government will lightly decide on the 
employment of armed force, and it is 
the height of irresponsibility to ap- 
proach the legal system with platitudes 
on the evils of force;. Moreover, the 
dilemma of the hawk versus the dove is 
not confined to any one country or to 
any one period of time. Insofar as 
international law gives expression to 
certain social experiences and, in the 
view of many, to certain essential re- 
quirements of the civilized world, it, 
too, has to face this dilemma. 

In the history of international law 
several phases can be observed in its 
approach to the problem of force. Cer- 
tain aspects which are taken for granted 
today were not always so, just as today 
we face new problems for which lb ere is 
little historic experience to guide us. 
Hut running through all this history is 
the persistent attempt to balance the 
legitimate requirements of national 
defense and security and the equally 
legitimate requirements of the civilized 
world which regards the indiscriminate 
use of force witli distaste and seeks to 
place it beyond the pale not merely of 
the law, but of normal international 
relations. 

The first stage in tempering the rigors 
of the use of force and subjecting it to 
legal restraint goes back to quite an 
early period of civilization. This relates 
to the protection of the noncombatanl, 
whether civilian or tin; sick and wound- 
ed military. Traces of this type of 
humanitarian legal regulation can be 



founcl in the Bible, in the teachings of 
the church fathers and in comparable 
works of other civilizations. They find 
formal expression today in the Geneva 
Conventions of 1949. Although this 
humanitarian aspect is peripheral to the 
central problem, the history of this 
humanitarian law is interesting because 
it can illustrate the central problem of 
our theme. That branch of the law has 
as its assumption that it is possible to 
make a clear and a logical distinction 
between the combatant and the non- 
combatant. But the experiences of 
modern total wars-whclher they are 
World Wars or whether they are lo- 
calized wars-cast serious doubts on the 
validity of the assumption. If that is so, 
as regards what is no more than a 
segment of the problem, it follows that 
the central problem itself is also colored 
by the same characteristic. For many 
smaller peoples, loss of a war may mean 
the loss of national independence, or at 
least a fundamental change of the na- 
tional destiny into new directions im- 
posed by the victors. It is the natural 
unwillingness of peoples to submit for- 
cibly to such changes which makes the 
problem of the legal regulation of the 
use of force one of such delicacy and 
difficulty, and which makes it, in the 
words of the New Yorker so "impos- 
sible for its legal form and its social 
content to be separable." 

It may be an oversimplification to 
state that the topic belongs to the 
dynamic area of international law. It 
concerns the dynamics of human inter- 
course and of international relations in 
general. It is relatively easy to draw up a 
legal text such as the Charter of the 
United Nations and refer to respect for 
the territorial integrity or political inde- 
pendence of any state. The assumption 
of these texts is that the very concep- 
tions of "territorial integrity" and "po- 
litical independence" when applied to 
concrete situations are inherently static 
and immutable. It may be true that, in 
general, law is by nature inclined 



towards the maintenance of stability. 
Hut the relationships with which we are 
dealing are themselves not static, and 
the consecration of stability in the 
words of a text may end up by being 
mere platitudes. A complicated variety 
of factors converges to make changes, 
and particularly territorial changes, al- 
most inevitable. Many of the situations 
of conflict existing in the world today 
can be traced to causes of this kind, just 
as in other parts of the world situations 
of tranquillity or relative tranquillity are 
explained precisely by the absence of 
these factors for rapid and forceful 
change. 

Does this mean that no reconciliation 
at all is possible between law and force? 
It is doubtful if a negative answer is 
justified. The experience of the present 
century seems to be showing the way in 
which a reconciliation could be 
achieved. 

Intellectual and informed pacifism, 
as opposed to purely emotional, ideo- 
logical, and dogmatic pacifist move- 
ments, has in the last hundred years 
looked in two directions as it ap- 
proaches towards the creation of an 
international order which, when it is 
constructed, will contain built-in ele- 
ments enabling it to cope with the 
inherent dynamism of international rela- 
tions. The first is the search after 
acceptable international machineries for 
facilitating the necessary changes in the 
international status quo, the so-called 
problem of "peaceful change." The 
second is the attempt to regulate the use 
of force itself by a mixture of political 
machinery and legal controls. 

If each of these approaches must be 
treated separately as a matter of system- 
atic presentation, in fact as well as in 
intellectual conception, they are in- 
separable. Indeed, in their modern guise 
the two approaches grew out of a single 
intellectual endeavor, being the reaction 
of a small group of farsightcd men- 
lawyers, statesmen, and officers of the 
armed forces-who were able to observe 



in the year 1870 on the one hand the 
two major continental European powers 
tearing themselves to pieces in a short 
but devastating war, and the two leading 
English-speaking powers, themselves on 
the verge of war, pulling back at the last 
moment and settling their differences 
by arbitration. The Franco-Prussian War 
and the Alabama arbitration took place 
almost simultaneously. 

The approaeh to the regulation of 
peaceful ehangc started with the idea 
that apart from the secondary, and, in a 
way, technical aspects of improving the 
actual formulation of international law 
(a process which, by the way, has 
produced very significant results during 
the last 20 years in the specialized area 
of codification of international law 
with, indeed, a highly sophisticated 
mechanism for this process), new inter- 
nationalized institutions to substitute 
themselves for the individual wills of the 
sovereigns in dealing with this typo of 
situation must be established and made 
operational. Apparently on the basis of 
what was thought to be the lesson of 
the organic social development which 
led to the creation of the modern state 
as we now know it, what was looked for 
was a way to centralize the control of 
force in the international area, much in 
the same way that inside each state 
private force is not allowed, and all 
controlled force is theoretically depen- 
dent upon the government. This was 
paralleled with the creation of new or 
improved international machineries for 
peaceful change and dispute settlement. 
These machineries fall into two general 
patterns: namely, those whose functions 
arc essentially limited to factfinding 
(the theory being that in many cases the 
impartial establishment of controverted 
facts may itself lead to the settlement of 
disputes), and those aiming at the crea- 
tion of more far-reaching regulatory 
mechanisms involving particularly 
machineries for conciliation and media- 
tion and machineries for arbitration and 
even international judicial scttlcment-- 



eorresponding to some extent in prac- 
tice, though not necessarily in theory, 
to the political role performed by the 
national legislature inside the slates. 
Regardless of technical and character- 
istic differences between these different 
institutions, their underlying approach 
is the same: namely, that the parties in 
dispute should have to lay their cards on 
the table, clarify their objectives, and 
leave it to third parties to find the 
reconciliation, whether by mere persua- 
sion or by more compulsive means. 

Experience has shown that in pro- 
ducing these machineries, for which 
some of the forms of internal stale 
organization were taken, their essential 
substance could not easily be trans- 
ferred into the international area, main- 
ly because of the tremendous impact of 
national sovereignty and the concept of 
the sovereign equality of states. In all 
modern states the central authority has 
at its disposal force which can be used, 
and is used, both to prevent breaches of 
the law and to enforce decisions of the 
dispute-settlement organs inside the 
state. This is the manifestation, on the 
internal plane, of the concept of "sov- 
ereignty ," and this has its international 
parallels too. In normal cases this works 
without much difficulty. The police in a 
criminal case and the bailiffs or the 
sheriffs in a civil case exist to ensure 
that the adjudged person carried out 
what he is supposed to do. Yet, in 
complicated situations with deep politi- 
cal and social overtones this system does 
not work so well. This can be illustrated 
by reference to two areas of social 
conflict frequently involving the use of 
force, with which the modern slate 
system is showing itself increasingly 
unable to cope on the basis of tradi- 
tional patterns. The first is the area of 
labor relations, and the other is the area 
of race relations. In both of these areas 
of conflict-as well as in others-legal and 
traditional governmental processes, 
while they may have immediate effi- 
cacy, rarely are able to get to grips with 



4 



the root causes of the tensions and by 
their failure to do this produce a kind of 
chain reaction in the form of contempt 
and frustration towards the law enforce- 
ment and even the lawmaking processes, 
if not towards society itself. 

These two particular areas of social 
tensions are close to the type of interna- 
tional tensions which endanger peace; 
and if the relatively closely integrated 
national societies are engaged in deep 
heart searching to find appropriate ways 
of handling these tensions and removing 
their explosive potentialities, how much 
greater are the differences in the un- 
cohesive international community. 

The second approach has turned 
more directly to the problem of force 
itself. It was at one time thought, for 
instance, that disarmament by itself 
would go a long way towards providing 
an answer to the problem, but disarma- 
ment was not effective between the two 
World Wars, possibly because it took the 
symptom for the cause, and the interna- 
tional debate on disarmament did not 
touch the roots of the suspicions and 
fears which have made the massive 
armament of nations so commonplace 
today. 

At the same time the international 
community has been groping towards a 
form of organization which will supply 
political machineries to deal with the 
situations of tension and maintain inter- 
national peace. This international effort 
today is epitomized by the United 
Nations. This is, in its external trap- 
pings, a highly sophisticated interna- 
tional administrative machinery, but in 
substance it is not very different from 
the more discreet system of preserving 
international peace of the Concert of 
Europe. The underlying theory in each 
case--and herein lies one explanation for 
the so-called right of veto in the Se- 
curity Council today-is that the big 
powers, in fact and not merely in 
theory, bear the primary responsibility 
for the maintenance of international 
peace. This theory worked well enough 



so long as the big powers were able to 
regulate their own relations between 
themselves. If it has not been effective 
since J 9 1 8, this is mainly because they 
have not been successful in regulating to 
the fullest extent their own relations. 

In the growth of this system the 
formal texts are now based on the 
proposition that war, as a matter of 
national policy, is renounced. In what- 
ever form the proposition is to be 
framed, whether as in the Briand-Kel- 
logg Pact of UJ28. which now exists in 
revised language in article 2, paragraph 4 
of the U.N. Charter, or in the form of 
the so-called Slims on Doctrine of non- 
recognition of territorial changes 
brought about by the illegal use of 
force, or in the so-called Litvinov for- 
mula of nonaggression, the proposition 
is one which will hardly stand up to 
critical analysis; furthermore, the super- 
ficial attraction of the slogan-like lan- 
guage blinds the unwary to the unreality 
of the proposition. It depends far too 
much on interpretation which, except 
when you have agreed interpretation, is 
at best a highly controversial exercise 
and at worst no more than a decoy for a 
naked political power struggle. 

Texts of this kind--perhaps stating 
the obvious-explicitly reserve what the 
United Nations Charter calls the in- 
herent right of self-defense against 
armed attack. The formulas used vary, 
but their purpose remains the same. The 
idea is that in principle the aggressive 
use of force is renounced as an instru- 
ment of national policy, but that if, in 
spite of this ban, another stale employs 
force, its victim is legally entitled to 
defend itself until the organized interna- 
tional society takes appropriate mea- 
sures to put a stop to the violations of 
peace. 

In the ("barter this syslcm is based on 
three assumptions, namely: (a) that the 
Security (Council— the organ on which is 
conferred primary responsibility for the 
maintenance of international peace and 
security- would have at its disposal non- 



military and military machineries of 
compulsion which it could use against 
recalcitrant slates; (b) that the Security 
Council would have a sufficiently united 
sense of purpose in the discharge of its 
primary responsibility, tbat it would be 
prepared to use these machineries 
through the devices of non military or 
military sanctions when faced with 
threatened or actual breaches of interna- 
tional peace and security; and (c) that 
the Security Council would be objec- 
tively capable of determining when an 
unlawful breach of the peace has oc- 
curred. Side by side with the Security 
Council there exists an all but defunct 
Military Staff Committee (which, in 
fact, has never met except on formal or 
social occasions) whose function, ac- 
cording to article 47 of the Charter, is 
to advise and assist the Security Council 
on all questions relating to the Council's 
military requirements for the main- 
tenance of international peace and 
security, the employment and command 
of forces placed at its disposal, the 
regulation of armaments, and possible 
disarmament. That is the teeth of the 
theoretical system of collective security 
established at San Francisco in 1945 
with its groping attempt at the centrali- 
zation of force on the international 
level. The U.N. Charter, taken simply as 
a text, appears to be a stronger docu- 
ment than the League Covenant, pro- 
fessing to learn from the failure of 
collective security as conceived in the 
inter war period by combining political 
procedures for peaceful change; with 
military procedures for the maintenance 
of peace. 

Taking the Charier as a legal text, 
attention may be called to two major 
and interconnected problems of inter- 
pretation for which the solution is still 
elusive. The two notions requiring defi- 
nition and interpretation are the central 
ones of "aggression" and of "force." 

The main problem of the definition 
of force is whether it should be limited 
to armed force (which, of course, is 



fairly, easily identifiable), or whether, 
for the purposes of constructing an 
adequate modern international order, 
Ihe concept is now a broader one 
altogether, including such intangible ele- 
ments as psychological, economic and 
political pressures. If there is a strong 
reaction today, and rightly so, against 
the "gunboat diplomacy" of the 19th 
century, there is an equally strong re- 
action against its so-called "gin-bottle 
diplomacy"; for the great colonial em- 
pires now disintegrating are said to have 
been established by a sinful combina- 
tion of these two methods of coercion. 
Most of the countries of the world are 
militarily and economically weak, and if 
the matter is approached simply as one 
of head-counting in international con- 
ferences, in which all states participate 
on a footing of formal equality, there is 
little doubt that the majority, indeed 
the overwhelming majority, with memo- 
ries of Munich (1938) very much in 
their mind would prefer the broadest 
possible interpretation as including all 
forms of pressure which one state can 
bring upon another. In practical terms 
this is obviously quite unreal; just as in 
ordinary human relations pressures can 
be used quite legitimately, until the fine 
dividing line of the illegal area of undue 
pressure is reached. 

The question of the definition of 
aggression has been under international 
discussion since the late 1920's, al- 
though it is actually older and is con- 
nected with treaties of guarantee and of 
nonaggression. In terms of the discipline 
of the law, the necessity for a definition 
of this term is now said by its propo- 
nents to arise from the obligation of 
members of the League of Nations, or 
today of the United Nations, to come to 
the assistance of the victim of aggression 
within the framework of the concept of 
collective security. It has been saijd, for 
instance, that a definition of aggression 
would assist the Security Council in its 
work, though this suggestion is un- 
doubtedly tendentious. 



I here is no difficulty over the oh- 

vious and blatant cases of direct amires- 
sion, which can easily be observed and 
listed. The difficulty arises over the far 
more dangerous and insidious forms of 
indirect aggression dcliberatly carried 
onl in a wa\ which cuahlcs a govern- 

r^ 

menl to deny responsibility for them. 
I cchniqucs ol iliis kind were commonly 
used in Europe as tensions preceding 
World War II were building up, and they 
have continued to L»c used ever since. 
Words like "Auslandsdeutsche" in the 
Nazi period, "Volunteers" in the Ko- 
rean war, or "Fedayecn" or "El Fatah" 
in the Middle Kast illustrate this. These 
phenomena also illustrate in practical 
terms the problem of the so-called 
preventive war and the risks to interna- 
tional peace and security which are 
created, if one thinks of defining aggres- 
sion in exclusively enumerative terms. 
Such a definition of aggression is ap- 
propriate, perhaps, lor the identifiable 
instances of direct aggression but quite 
inappropriate if one takes a broader 
look at the whole problem of the 
international regulation of the use of 
loree. 

On the whole, the Security Council 
as an organ operating collectively and 
the powers represented on it working 
individually have displayed a marked 
reticence towards formally condemning 
a stale as an aggressor, even in quite 
obvious cases, except where, for some 
fortuitous circumstance, the parliamen- 
tary situation was favorable to one 
point of view as in the case of Korea in 
June 1950, and even then the North 
Korean action was called only a "breach 
ol the peace.' 1 There are at least two 
explanations for this. One is the deep 
political cleavage existing among the 
permanent members of the Security 
Council which is responsible for the 
noncrcation of international peacekeep- 
ing forces at the disposal of the Security 
Council such as are envisioned in the 
U.N. Charter, and in general for the 
Council to act as planned in the Charter. 



In the major conflicts which have come 
before the United Nations since l ( M. r >, 
the divisions between the major powers, 
deriving from the deep clash of interests 

in terms of global strategies, have pre- 
vented them ever being at one and 
saying that an act of aggression has 
taken place, or that joint and universal 
action was needed to restore the peace. 
The second is a matter of diplomatic 
technique. If the objective is the restora- 
tion of peace and the adjustment of a 
situation that has given rise to serious 
tension, pejorative assertions that one 
side 'or another had been guilty of 
aggression are not likely to be helpful in 
terms of reaching a settlement. Instead 
of this we find the Security Council 
adopting a more pragmatic approach 
and concerning itself rather with pre- 
venting the spread of violence and bring- 
ing it to an end than with condemning 
states. This has been coupled with the 
virtual abandonment by the Security 
Council of any idea that it could legis- 
late a new situation into existence. This 
has been left to the parties, the interna- 
tional organizations at best providing a 
set of recommended guidelines. In the 
same line of thought, internationally 
controlled and internationally com- 
posed military forces have been created 
ad hoc and have operated under the 
United Nations flag, working not under 
the compulsory powers of the Security 
Council hut hy agreement of the stales 
concerned, something which the U.N. 
Charter did not foresee. Many think 
that in the long run this is a more 
satisfactory approach towards in- 
tractable problems, and one closer to 
international realities, than any attempt 
to operate the Security Council as 
though it were a kind of world police- 
man intervening automatically to pre- 
vent real or threatened breaches of the 
peace and a world legislature dictating 
settlements. 

One of the common techniques to 
cover up the use of force in foreign 
relations is that of intervention at the 



invitation of the responsible authorities 
of an invaded state. Armed intervention 
is nothing new in international relations, 
it being the traditional manner in which 
strong states imposed their will on 
weaker stales or prevented the emer- 
gence in weaker slates of elements 
hostile to their own policies. Today, 
under the regime of the 11. IN. Charier, 
intervention of this type is banned. It is 
in order to overcome that ban that the 
procedure has been evolved by which a 
government "invites" some outside 
power to send in its armed forces to 
"protect" it. Sometimes this happens 
when internal turmoil may threaten the 
internal regime without necessarily lead- 
ing to a change in the general interna- 
tional orientation of a slate; at others, 
the internal turmoil may even be pro- 
duced or accompanied by external ele- 
ments themselves aiming at producing a 
change in the country's external orienta- 
tion. In the first type of case, where the 
international status quo is not really 
threatened, this form of intervention, 
while not commendable, may not al- 
ways be open to serious reproach, pro- 
vided the invitation to intervene is real, 
that it leaves the government in com- 
mand of the situation and is not exces- 
sive, and that it is terminated as soon as 
feasible. The other type of case, on the 
other hand, will have serious interna- 
tional repercussions, possibly of the 
most far-reaching kind. Nevertheless, 
the fact that the intervention is in 
response to an apparently authorized 
invitation from some responsible au- 
thority may be of purely nominal sig- 
nificance. 

The reader may detect in this article 
a tone of pessimism, as though the 
lawyer atid diplomat are resigning from 
their professions in face of the enor- 
mous problems confronting them. Hut 
such a conclusion would be premature. 
There is no doubt that the international 
society, with all its deep-rooted schisms 
and heterogeneity, has advanced a long 
way in strengthening the peace-preserv- 



ing mechanisms in comparison with 
what was the position as little as half a 
century ago. Perhaps the greatest ad- 
vance has been in ihe realization thai an 
adequate legal order can only be con- 
structed on the basis of a realistic 
approach which fully recognizes on the 
one hand that no self-respecting nation 
will jeopardize its supreme national in- 
terests, as it conceives them, on the altar 
of legalism or idealistic perfectionism, 
and on the other that there do exist 
collective interests beside the egoistical 
interests of the individual stales. This is 
undoubtedly balanced by the fact that 
thanks to the destructive force of 
modern weapons and the totality of 
modern war the subjective weighing of 
the national interest is a far more 
delicate and profound operation than it 
appears to have been even as late as 
1939. To overcome the present suspi- 
cions and fears is a major political task 
which the lawyer is perhaps not the best 
equipped to perform. Indeed, one might 
easily say that just as war is too serious 
a matter to be left to the generals, so is 
the international legal regulation of 
force and its various manifestations too 
serious a matter to be left to the lawyers 
and politicians. The U.N. Charter at- 
tempted, on the basis of its pragmatic 
approach to the matter, to combine the 
political, economic, legal, and military 
aspects under the aegis of the Security 
Council. For political reasons the origi- 
nal scheme has failed, and its replace- 
ment has not yet begun to take clear 
shape. But that it can only be based on 
that kind of combination of profes- 
sional talents and interests is now 
widely recognized. When that ideal 
situation will have been reached, the 
world will be in a better position to 
provide effective international ma- 
chinery for making objective determina- 
tions of whether the supreme national 
interests are at stake. So long as that 
determination is left to the individual 
subjective appreciation of each state, as 
it now inevitably is, the matter is going 



8 



to be left to political judgment with the 
law following suit. 

In the development of the concept of 
colleetive security, with its concomitant 

of sanctions against the state guilty of 
the breach of the peace, the naval arm 
of the armed forces occupies a promi- 
nent place. For many centuries the 
naval forces have formed the main 
instrument by which force has been 
brought to bear (except as far as con- 
cerns the immediate limitrophe states). 
Furthermore, as a syllabus in the Naval 
War College puts it, naval force provides 
the dynamics for "bilateral as well as 
multilateral and often abrasive confron- 
tations between discreet sources of 
power and military force. " It is fre- 
quently overlooked today that many of 
the details of the concept of sanctions 
as they exist in books about the League 
of Nations and in certain official papers 
of the United Nations have their direct 
inspiration from the economic warfare 
measures applied by the Allied and 
Associated Powers during each of the 
two World Wars, in which the naval 
forces played a key role. The old system 
of prize law, now largely relegated to 
the limbo of naval and legal history 
(where it makes fascinating reading), 
provides the inspiration for much of the 
contemporary conceptions of collective 
applications of sanctions, and even of 
individualized applications of force, in 
exceptional circumstances. The quaran- 
tine of Cuba has its historic parallels in 
the Anglo-French economic warfare in 
the Napoleonic wars, in the long- 



distance blockade of the American Civil 
War (the Alabama arbitration previously 
mentioned was an outgrowth of that), 
and in the elaborate controls of all 
seaborne trade initiated by the Allies in 
1914 and perfected in 1940, and in 
post- 1 945 controls of the movement of 
strategic materials from one part of the 
world to another. 

It is staled in the Naval War College 
syllabus that the naval officer must be 
in a position with sureness and firmness 
to understand, evaluate, and effectively 
exploit the legal advice and counsel 
which he solicits. The naval officer is 
not, of course, the only public servant 
to which that admonition should apply 
(it should certainly apply to the diplo- 
mat). If this article has conveyed the 
impression that there is little firm in the 
legal rules governing the employment of 
force, one may at the same time safely 
assume that a responsible government- 
and one cannot legislate for irrespon- 
sible governments-will determine the 
limits of the freedom of action of a 
commander in any military or quasi- 
military action, and that adroit use of 
modern communications in unforeseen 
situations, in the context of the general 
humanizing mission of the contempo- 
rary international law, will provide a fair 
course on which to sail. For in the final 
result, international law, like all law, is 
common sense writ large, and common 
sense coupled with good faith goes a 
long way towards remedying formal 
deficiencies which the unsatisfactory 
state of contemporary law exhibits. 



t 



INTERNATIONAL LAW, THE OAS 



AND THE DOMINICAN CRISIS 



Charles G. Fenwick 



The year is 1904. We had a president 
then with some fight in him— Theodore 
Roosevelt. He looked around the Carib- 
bean, saw disorder, and said, "This has 
to stop." At that time we didn't have 
any ideas of international cooperation. 
He just took up a big stick and, ouch! 
the Dominican Republic was hit on the 
head. He said to Venezuela, "What did 
you borrow all that money for and 
bring European powers over here? 
Didn't you know any better? They lend 
money and expect you to pay it back 
and' will come for it if you don't.'' He 
chastized Venezuela, the Dominican Re- 
public, Nicaragua— in the name of an 
international police power; there wasn't 
much of an international element in it. 
It was Theodore Roosevelt with a big 
stick, maintaining law and order— not 
maintaining it in the interest of a world 
of law or order, no, not immediately, 
but rather maintaining it in the interest 
of the United States. 

Now the year is 1907. We are having 
a peace conference at The Hague— the 
second Hague Peace Conference. What 
in the world was the matter with the 
delegates from the United States, not to 
mention those from Great Britain and 
other countries? They went to a con- 
ference which was called a peace con- 
ference and signed 13 conventions, 11 
of which related to the conduct of the 
next war. 



As a young law clerk at the Carnegie 
Endowment nearly 60 years ago I was 
assigned to edit a book by our chief 
delegate to the Conference. Nobody had 
a constructive idea of stopping another 
war; the whole thing was how to fight it 
humanely, as if you can blow up a man 
humanely. Dum-dum bullets were for- 
bidden. An ordinary Spanish bullet in 
1898 went right through you, and you 
still could keep going, but a dum-dum 
bullet would tear your arm open, and 
that was forbidden. In other words, you 
could blow a man to pieces and it was 
all right, but you must not cause him 
unnecessary suffering while he is still 
alive and maybe can go back to fight 
again. 

The year 1914 came and war was 
smoldering in Europe. I was then in 
Germany, and I heard the Kaiser say 
from the palace that war had come and 
all should go forth to die in defense of 
the country. That same night, in France, 
the French Foreign Minister was saying 
the same thing. And what did Woodrow 
Wilson do? He said there was nothing 
we could do. It was too bad, but we 
were not in a position to uphold inter- 
national law and order. We had the 
Atlantic and Pacific Oceans as barriers 
to protect us. We were neutral, and as 
neutrals we didn't know the difference 
between right and wrong. But we didn't 
just sit there; we began to lend money; 



10 



we began to sell arms and ammunition 
and made profits out of the war until 
the time came when we were practically 
in the war ourselves. Woodrow Wilson 
then had an idea. We can't go on with 
this business of neutrality and get in a 
war in spite of our desire to stay out of 
it. Let's abolish neutrality and start a 
system of collective responsibility of all 
countries for the maintenance of peace. 

In 1920 came the League of Nations 
—an attack upon one is an attack upon 
all. That's the principle of the State of 
Rhode Island— an attack upon one is 
technically and theoretically an attack 
upon all. But when Woodrow Wilson 
came back from Paris with a treaty to 
that effect and presented it to the 
Senate, they said, "Oh no, what is this 
man doing? Dragging us into a world of 
wars; wasn't one war enough?'' One 
objection after another was raised: "Are 
we going to involve the United States in 
a system of world law and order, with 
the possibility of another war?" 

Gentlemen, in the Constitution of 
the United States, article 4, section 4 (I 
am giving the reference to you so that it 
won't embarrass you, because few seem 
to know the article or the section), it is 
said that the United States guarantees to 
each state in the United States a republi- 
can form of government It says that, 
but please remember that in that day 
"republican" meant "democratic." The 
United States guarantees to each state a 
democratic form of government and will 
protect each of them against invasion. 
That Constitution came down to the 
state of Virginia for ratification. 

When I was a boy I was put up on a 
table and had to recite Patrick Henry's 
"Give me liberty, or give me death." 
When Patrick Henry saw that clause in 
the Constitution he said to the Virginia 
Legislature, "Call off the ratification of 
the Constitution; Virginia will never 
send her boys to die in the marshes of 
Rhode Island to protect that state 
against Massachusetts." You have some- 
thing in your own early history that 



suggests that Massachusetts had not 
behaved very courteously toward Rhode 
Island. Of course, Patrick Henry didn't 
know Newport then. If he had, he 
certainly would have let Virginian boys 
save Newport. Well, in 1920 that was 
the attitude that Senators Johnson of 
California, Lodge of Massachusetts, 
Borah of Idaho, and others, took 
toward Woodrow Wilson's proposal of a 
system of collective responsibility— an 
attack upon one is an attack upon all. 
But we were not interested then in 
world law and order. We were only 
interested in our own safety— our na- 
tional security, which obviously comes 
first, but we did not see that our own 
security was involved in a world of law 
and order. I lectured all over the United 
States in those days. I lost every debate. 
I was trying to persuade the American 
people that the only hope of staying out 
of another war was to prevent it. Profes- 
sor B orchard of Yale called me an 
evangelist, and a senator called me by an 
uglier name— he said I was in the pay of 
Great Britain, and all that sort of stuff. 

The year 1927 came and the Repub- 
licans— (forgive me if some in the 
audience are offended by my attitude, 
but down in Virginia I was brought up 
to think that all Republicans were bad, 
some worse than others, but all were 
bad) well, what were the Republicans 
going to do? They had to do something, 
so they proposed to take a New Year's 
resolution, and we adopted the Kellogg- 
Briand Pact outlawing war. Instead of a 
League of Nations that might provoke 
war, let's outlaw war; let's adopt a 
resolution declaring war unlawful. 

Once upon a time there was a man 
named John Brown, let's call him. He 
was a hard drinker. January 1st came 
and his wife, Maria, thought he should 
do something— should take a resolution. 
So John Brown did take a resolution. 
He said, "Maria, I solemnly swear that 
for the coming year I will not touch a 
drop unless I am exceptionally thirsty." 

Now the Kellogg-Briand Pact said, 



11 



"We won't go to war; we will outlaw all 
wars except wars of self-defense." Look 
over your American history and see if 
you can find one war that was not a war 
of self-defense. In other words, it was 
fraud of the first order; but somehow or 
other we were taken in by it, outlawing 
war. Japan wasn't troubled; she went 
right ahead against China. Stimson was a 
grand man, but all he could do was to 
say, "The United States will not recog- 
nize any conquest." That's all. That 
didn't trouble Japan. She didn't care 
whether we recognized her conquest or 
not She would have it just the same. 

In 1936 a war in Europe was on the 
horizon, and we thought we ought to do 
something to protect America. So we 
met down in Buenos Aires, and I had 
the honor of being a delegate of the 
United States to that conference. Frank- 
lin Roosevelt went down, and we met, 
and we said to the Latin Americans, 
'You don't like the big stick, do you?' : 
They said, "No, we don't like the big 
stick." We said, "All right, we'll throw 
the big stick into the river if you will all 
collectively agree that in the event of an 
attack from Europe you will all support 
the United States on the principle of the 
Monroe Doctrine." The Foreign Minis- 
ter of Argentina was opposed; he did 
not like the underlying danger of what 
he called "Monroeism." But with the 
aid of our friends, notably the Brazilian 
Aranha, a magnificent speaker, we 
succeeded, although it was the weakest 
treaty in all of our history. In the event 
of a threat to the peace we would 
consult individually: to decide whether 
to consult collectively, to decide 
whether to do anything. That was the 
treaty of 1936. But it was a beginning, 
an opening wedge. We call it consulta- 
tion—a consultative treaty— and that was 
the cornerstone of our inter-American 
system: consultation in the event of a 
threat to the peace. 

Two years later we met at Lima, 
Peru; it was the same thing over. We 
tried to get something stronger because 



the clouds of war were on the horizon 
in Europe, and with a war on the 
horizon we wanted to strengthen the 
inter-American system so that we could 
stand together as neutrals. Stand to- 
gether as neutrals? What had we done in 
1935, 1936, and 1937, but practically 
give the green light to the dictator 
Hitler? We said that in time of war (we 
didn't say it to Hitler, of course, we said 
it to our own people) you mustn't get 
involved. If you are a banker, don't you 
lend 10 cents to a belligerent. If you are 
a munitions maker, don't you sell one 
gun. That was exactly what Hitler 
wanted because the British are never 
ready. They could not believe that a war 
was coming. I was over in England in 
1939. I had gone all the way to Stock- 
holm, Sweden, to make a peace talk, as 
if Sweden could have any influence over 
Hitler. I came back to London and went 
to Parliament with a friend on 2 August. 
All this, and the 4th was the start of 
World War I. What was Parliament 
doing? They were discussing an old-age 
pension bill. Can you believe it? I said 
to my friend, "What in the world do 
they mean by losing their time in this 
crisis? Don't they know that August 4th 
is an anniversary, and Hitler is the kind 
of man to begin his war on the date that 
would have a psychological reaction in 
Germany?' But you couldn't keep 
Britons from their weekend. Saturday 
came and Parliament adjourned, too 
honorable to believe that others could 
be dishonorable. A month later the war 
was on, and when it came we soon 
found that the attitude of neutrality 
that we had taken was completely 
against our own best interests. The 
Germans didn't trouble this time about 
violating merely the neutrality of Bel- 
gium; that was nothing. They invaded 
Denmark, Holland, Belgium, and Nor- 
way, and the United States suddenly 
woke up as if with an electric shock. If 
this man is going to take over all of 
Europe, Britain will go under of a 
certainty, and where would we be? How 



12 



much value would the Atlantic Ocean 
be to us? So we woke up and met with 
Churchill on the high seas and decided 
that neutrality was past. We undid the 
neutrality laws, and we prepared to help 
Britain, principally through the trade of 
naval bases and destroyers. Then, 
finally, the Japanese hit us, and we were 
in the war. 

It was a war we could have prevented 
20 years before had we seen the light. 
We were now in it, and with it we 
completely changed our policy and saw 
that the United States had a vital 
interest in the maintenance of interna- 
tional law and order, a fundamental 
national interest. Then we formulated 
the Charter of the United Nations, 
which was simply a repetition of the 
principles of the old League of Nations 
that an attack upon one is an attack 
upon all, except that we gave a veto 
power to a select few who constituted 
membership of the Security Council. I 
was in Latin America at that time, and 
they said, "We are very doubtful about 
this new League of Nations. If you are 
going to give Russia a veto we are not 
for it." How was it possible that we 
were ready to give a veto to the "Big 
Brown Bear"? Oh, the "Big Brown 
Bear" had affectionate arms in those 
days. We trusted Stalin. We couldn't 
take in how fundamentally untruthful 
he was. So we gave the Soviet Union a 
right of veto. Latin America met in 
Mexico City and said, "The only condi- 
tion on which we will go into this 
proposed United Nations is if you allow 
us the reservation of self-defense in case 
of a veto by the Soviet Union." So we 
gave them article 51 of the Charter. You 
have a copy of the Charter; read article 
51. It reserves the right of self-defense, 
individual or collective, until such time 
as the Security Council has kept the 
peace, so that if Russia vetoes measures 
to keep the peace, you have the right of 
individual or collective self-defense. 

With that principle recognized the 
United States said to Latin America, 



"Let's meet, modify, and strengthen our 
own regional collective security system 
in the light of the Charter of the United 
Nations, taking advantage of the right of 
individual or collective self-defense." So 
we met in Rio de Janeiro and formu- 
lated the Treaty of Reciprocal Assis- 
tance. That is the cornerstone of inter- 
American collective security— the Treaty 
of Reciprocal Assistance of 2 September 
1947. 

That treaty has two elements to it: it 
says that in the event of an armed 
attack against any one of the American 
states within the hemisphere or without, 
we are all obligated to come immedi- 
ately to the defense of the state 
attacked. The second part says that in 
event of a threat to the peace through 
an act of aggression short of an armed 
attack we are all obligated to consult 
together to decide what measures must 
be taken to meet the threat to the 
peace. That is the cornerstone today of 
inter-American collective security. 

A year later we met at Bogota in 
Colombia (a lovely spot, a little bit 
high) and we signed the Charter of the 
Organization of American States. The 
Charter, in this respect— collective se- 
curity—merely repeats the terms of the 
Treaty of Reciprocal Assistance of 
1947, the Rio Treaty. That again, I 
repeat, is the cornerstone of our collec- 
tive security system. 

Now let us see how it works. In 1951 
a conference meets in Washington, an 
inter-American conference. What is it all 
about? Well, unhappily, since 1945 the 
whole collective system of the United 
Nations has gone to pieces. The whole 
collective system, that an attack upon 
one is an attack upon all, has broken up. 
Why? Because some clever chemist or 
physicist, or whatever he was, has in- 
vented an atomic bomb; and one single 
country, the Soviet Union, with an 
atomic bomb in its pocket can defy the 
whole world. Who is going to risk 
challenging it? Collective security moans 
that the whole community, acting 



13 



collectively, is strong enough to prevent 
an attack, to warn a nation against 
committing an act of aggression; but if 
one single country has an atomic bomb 
in its pocket and is evil-minded enough 
to use it, who is going to challenge that 
country? Who is going to dare risk 
complete annihilation? There were Hiro- 
shima and Nagasaki; were they not 
examples of what could happen with 
that bomb? How far would you expect 
any country to challenge the big states 
that had the atomic bomb? And so for 
the moment the Soviet Union was, in a 
sense, supreme. We had the atomic 
bomb; we had used it first, but the 
Soviets could trust us because anyone 
who knows our history, our long tradi- 
tion, knows that we do not break our 
word; but anyone who knows the more 
recent tradition of Russia knows that 
they do break their word and will break 
their word and in 1947 and 1948 were 
breaking it all over eastern Europe. That 
was the situation. We met in Washington 
in 1951 and extended the idea of a 
threat to the peace to include an act of 
aggression by the Soviet Union— not 
very specific and definite. Not, of 
course, an open attack, but the subver- 
sive activities of the Soviet Union. That 
was the first act of the OAS to meet a 
threat to the peace under the Rio 
Treaty. 

Let's look at another phase. The year 
1954 comes and the Russian infiltration 
in Latin America has gone forward. We 
meet down in Venezuela, and at Caracas 
we take a resolution in which we said 
that the control by international com- 
munism of the government of any 
American state will be regarded as a 
grave threat to the peace, and we would 
meet in common consultation to take 
action together to confront it. Inter- 
American collective security, in the face 
of a threat to the peace, was specifically 
directed to international communism. 

Other applications of the Rio Treaty 
may be mentioned. In 1961 a dictator 
in the Dominican Republic, Trujillo, 



actually went so far as to conspire with 
Communists in Venezuela to assassinate 
the President of Venezuela, something 
unheard of in our history. Betancourt 
was a liberal president of Venezuela 
trying to protect that country from 
Communist infiltration, and Trujillo 
sought to help assassinate him. Fortu- 
nately, the bomb exploded just after 
Betancourt 's car had passed the desig- 
nated spot. But there was no question 
whatsoever of Trujillo s responsibility, 
and so we met and put sanctions against 
Trujillo. They were mild sanctions at 
first, but they could be followed by 
stronger ones, such as a sanction against 
the shipment of oil, which will bring 
any government to a stop today. That's 
just a sample of how the OAS acts. 
Then there was a boundary dispute 
between Honduras and Nicaragua. 
Nicaragua contested the boundary that 
had been fixed in the year 1906 by the 
King of Spain. "Oh," says the Nica- 
raguan delegate, "the King of Spain 
didn't even read the documents. We 
don't have to accept an award of 50 
years ago." So a war was coming close. 
We called them both to Washington, sat 
them down around the table at the 
Pan-American Union, and we said to 
them in strong terms, "Shame on your- 
selves, you signed the Rio Treaty, and 
the Charter of the OAS calls for the 
submission of this problem to a settle- 
ment by arbitration." I offered to settle 
it as Head of the Department of Law. I 
offered to settle it for 30 cents. I was 
paid by the Pan-American Union, so I 
said I would settle it for them. But 
critics said, "What, a worm like you, a 
little small 2-by-4 lawyer?" If you ever 
have a real case and want to prevent 
your home parliament from criticizing 
you too sharply, you submit the case to 
the International Court of Justice, and 
instead of 30 cents you pay ten thou- 
sand times that much for French 
lawyers and other clever ones. You lose 
your case before the Court and go back 
to your home parliament, and it can 



14 



make no criticism. What a grand ambas- 
sador we have in Washington; the 
Nicaragnan Ambassador, like the gentle- 
men he is, accepted the decision of the 
International Court of Justice, and a 
quarrel of half a century came to an 
end. 

In 1959 a revolutionary government 
takes over in Cuba, and Castro, seeing 
that he can't possibly win by normal 
procedures, tears up the Rio Treaty- 
tears up the Charter of the OAS— and 
proceeds to come to terms with whom? 
With our friends in Russia. "Put missile 
bases here and you will be right under 
the nose of Washington, and you can get 
anything you want from them." The 
Russians accepted his invitation to come 
over and build missile bases. We in- 
spected (the Navy and the Air Force are 
to be credited here) and found that the 
missile bases were under construction. 
The Russian Ambassador had misled 
President Kennedy, pretending, "We are 
not doing anything in Cuba except to 
assist them in defending their country. ,, 
But the missile bases were not a mere 
basis of defense but were a basis of a 
possible Russian attack. President Ken- 
nedy intervened on 22 October and said 
to Khrushchev, "Destroy your missile 
bases or else." For about three days we 
were a bit nervous. I certainly was. But 
Khrushchev took the warning and 
destroyed the missile bases, although we 
did not succeed in getting the right to 
send in inspectors. We are today, in 
self-defense, engaged in photographic 
reconnaissance over Cuba to be sure 
that no new missile bases are being 
built. 

The most serious problem of the 
atomic bomb is that you don't know 
who attacked you. In the good old days 
you knew who hit you, and you hit 
back. We knew who struck us at Pearl 
Harbor, and we hit back at him and his 
friends. But if an atomic bomb were to 
blow up Washington or New York 
tonight, we wouldn't know who hit us. 
And so President Kennedy said to 



Khrushchev, "If an atomic attack comes 
from Cuba we shall regard it as coming 
from Russia." Now that meant some- 
thing. For three days I confess I was 
nervous. No doubt you were too. 
Khrushchev gave way and the bases 
were broken up. We haven't found yet a 
solution to the Cuban situation. I don't 
know why we didn't invade Cuba the 
day that Castro tore up the Rio Treaty 
and the Charter of the OAS. I would 
have. Maybe you think I am wrong, that 
is your privilege. And one of the argu- 
ments in the Dominican Republic case, 
which we now turn to, was that one 
Cuba was enough. We can't risk having 
the Dominican Republic turn into an- 
other Cuba. 

In April 1965 we found in that 
unhappy country that the infiltration of 
Communist agents was creating unrest 
bordering on civil war. When our ambas- 
sador reported that there was shooting 
in the streets and people couldn't leave 
their hotels to buy food without the 
risk of being shot by some Tom, Dick, 
or Harry who happened to have a gun, 
we sent our troops in to protect them. I 
consider that the initial act of pro- 
tecting our citizens in Santo Domingo, 
capital of the Dominican Republic, was 
an ordinary act of self-defense without 
any reference to the Rio Treaty or the 
Charter. The next day we called in 
consultation the Council of the Organi- 
zation of American States, and at first 
the reaction was hesitant. But then as 
things got worse, and it was clear that a 
civil war would break out, the OAS 
created an armed peace force, the first 
time in American history— an inter- 
American armed force. While that 
armed force was largely from the United 
States, it had with it the backing in 
principle of Latin America, and we very 
wisely arranged to have a Brazilian 
general put in command. 

Brazil is a magnificent country. I 
spent years there representing the 
United States during the war. Brazilian 
generals are the finest type of men you 



15 



could meet anywhere, and the present 
Brazilian Foreign Minister, Juracy 
Magalhaes, who was Ambassador in 
Washington, couldn't be more typical— a 
man whose integrity is absolute, whose 
word is his bond, and who is our friend. 
I say that also for the present Ambassa- 
dor in Washington, Vasco Leitao da 
Cunha. He is a gentleman and a man of 
character and intelligence. We appointed 
a Brazilian general to give an interna- 
tional character to the peace force. But 
the forces in the Dominican Republic 
were largely American forces, as in my 
judgment they should be. 

Now, a lot of my old friends and 
friendly enemies say, 'You have no 
right to go into the Dominican Repub- 
lic; that's intervention. That is a viola- 
tion of the fundamental principle of 
nonintervention." Intervention has 
created a psychological, I would say 
almost a psychopathic, reaction in some 
parts of Latin America from memories 
of the days of the big stick. We are not 
intervening in the Dominican Republic 
any more than the Rio Treaty justifies 
us. 

Was there a threat to the peace in the 
Dominican Republic? Obviously there 
are threats to the peace of different 
degrees. I think there was a serious 
threat to the peace, and President John- 
son expressed it very clearly when he 
said, "One Cuba is enough." If the 
Communists infiltrate and take over the 
Government of the Dominican Re- 
public, we shall have a problem on our 
hands like that of Cuba and a possible 
danger from an atomic bomb getting 
into the hands of some fanatics who 
would throw it, and we won't know 
where it came from. So I am not 
troubled about the accusation of inter- 
vention. 

In the law of the State of Rhode 
Island, as in the law of every other state, 



we respect the home life of the citizen. 
We respect the family life of the citizen, 
but when disorder breaks out in the 
family, if husband beats wife and wife 
screams, we don't say, "Oh, no, you 
can't go in that house, a man's home is 
his castle." We go in, and we stop the 
violence. In my judgment the world is 
growing today to the point where what 
would not have been a threat to the 
peace 50 years ago and would not have 
troubled us can be today a threat to the 
peace. We have grown together; we are 
working new agencies. The Alliance for 
Progress that we started five years ago is 
unable to function where there is riot 
and disorder. In the past riot and 
disorder have as a rule not been con- 
sidered sufficiently important to consti- 
tute a threat justifying intervention. But 
I would say today that if a revolution 
should break out in one country or 
another the Organization of American 
States would be justified in doing what 
it could to prevent a civil war. The days 
of civil war are over. You cannot have a 
civil war today without disturbing the 
peace, certainly not in America. Conse- 
quently I interpret the Rio Treaty, 
article 6, where it speaks of a threat to 
the peace, in a broader sense than it 
would have been interpreted 50 years 
ago. The United States has a vital 
national interest today in the main- 
tenance of international law and order. 
That's the fundamental principle on 
which we stand. That principle was not 
even heard about in 1914; it was re- 
jected by the United States in 1920. But 
today, in the changing world in which 
we are living, I maintain that we have a 
vital national interest in the main- 
tenance of international law and order. 
On that basis I defend the intervention, 
if you want to use the word, of the 
United States in the Dominican Re- 
public. 



t 



16 



U.S. NAVY REGULATIONS, 

INTERNATIONAL LAW, 

AND THE 

ORGANIZATION OF AMERICAN STATES 

Theodore K. Woods 



INTRODUCTION 

Since 1893, U.S. Navy Regulations 
have tasked naval officers with the 
responsibility of exercising their inde- 
pendent judgment in the application of 
force to protect the lives and property 
of {L^>. citizens on foreign soil against 
actual or impending arbitrary violence. 
These regulations were written at a lime 
when international law recognized the 
principle of applied force to protect the 
lives and property of nationals in for- 
eign stales when the foreign state was 
unable or unwilling to protect them. 

The purpose of this paper is to 
examine these regulations in the light of 
the changes that have taken place in 
international law— in the 76 years since 
they were drafted -in order to establish 
whether they have any utility in today's 
world. Noting that the majority of 
instances in which the United States has 
used force for the protection of its 
citizens abroad have taken place in 



Latin America and also that the re- 
straints imposed by international treaty 
are particularly meaningful in this area, 
Latin America has been chosen as the 



background locale. 



I-THE NAVAL OFFICER 
AND INTERNATIONAL LAW 

The naval admiral or cap- 
lain ... in international law, as in 
strategy and tactics . . . must 
know the doctrine of his country. 
In emergencies, not infrequently, 
he has had to act for his superior, 
without orders, in the spirit and 
manner his superior would de- 
sire . . . Injudicious action may 
precipitate hostilities; or injudi- 
cious inaction may permit in- 
fringement of American rights, of 
persons or ol properly. 

Today, the officers and men of all 
branches of the service are living and 



17 



operating in all areas of the world in 
furtherance of our Nations objectives. 
The responsibilities necessarily at- 
tending these operations creale frequent 
direct relations with foreign govern- 
ments, both allied and neutral. In these 
relations it is incumbent that our Na- 
tion's representatives be guided by "the 
principles and rules of con- 
duct . . . which states feel themselves 
bound to observe, and, therefore, do 
commonly observe in their relations 
with each other.'' The Navy, because 
of the necessity of conducting opera- 
tions beyond the continental limits of 
the United States, has always stressed 
the study of international law for its 
officers. To further the education of the 
naval officer in the field of international 
law, the Naval War College inaugurated 
the "Blue Book" program in 1894, 10 
years after the founding of the Naval 
War College itself, to disseminate per- 
tinent educational and informational 
material in the field of international law 
to all naval officers. 

U.S. Navy Regulations, which are in 
the nature of general orders to all 
members of the naval service, place 
particular emphasis on international 
law. Article 1214, U.S. Navy Regula- 
tions, 1948, provides that "all persons 
in the naval service, in iheir relations 
with foreign nations, and with the gov- 
ernment or agents thereof, shall con- 
form to international law and to the 
precedents established by the United 
States in such relations," while article 
0505 makes it mandatory for a com- 
manding officer to observe and require 
his command to observe the "principles 
of international law." Among the prin- 
ciples of international law are those 
found in articles 0613 and 0614 con- 
cerning the protection of the lives and 
property of U.S. citizens on foreign 
territory. 

These articles provide: 

Article 0613. Violations of Inter- 
national Law and Treaties. 



On occasions where injury to 
the United States or to citizens 
thereof is committed or threat- 
ened, in violation of the principles 
of international law or treaty 
rights, the senior officer present 
shall consult with the diplomatic 
or consular representatives of the 
United Stales, if possible, and 
shall take such action as the 
gravity of the situation demands. 
The responsibility for any action 
taken by a naval force, however, 
rests wholly upon the senior offi- 
cer present. He shall immediately 
report all the facts to the Secre- 
tary of the Navy. 

Article 0614. Use of Force 
Against a Friendly State. 

l.The use of force by United 
States naval personnel against a 
friendly foreign state, or against 
anyone within the territories 
thereof, is illegal. 

2. The right of self-preserva- 
tion, however, is a right which 
belongs to stales as well as to 
individuals, and in the case of 
slates it includes the protection of 
the state, its honor, and its posses- 
sions, and the lives and property 
of ils citizens against arbitrary 
violence, actual or impending, 
whereby the state or its citizens 
may suffer irreparable injury. The 
conditions calling for the applica- 
tion of the right of self-preserva- 
tion cannot be defined before- 
hand, but must be left to the 
sound judgment of responsible 
officers, who are to perform their 
duties in this respect with all 
possible care and forebearance. In 
no case shall force be exercised in 
lime of peace otherwise than as an 
application of the right of self- 
preservation as above defined. It 
must be used only as a last resort, 
and then only lo the extent which 
is absolutely necessary to accom- 



18 



plish ihe end required. It can 
never be exercised with a view to 
inflicting punishment lor the ads 
Already committed. 

3. Whenever, in the application 
of the above-mentioned prin- 
ciples, it shall become necessary 
to land an armed force in a 
foreign territory on occasions of 
political disturbance where the 
loeal authorities are unable to give 
adequate protection of life and 
property, the assent of such au- 
thorities, or of some of them, 
shall first be obtained, if it can be 
done without prejudice to the 
interests involved. 

It is interesting to note that these 
articles have remained virtually un- 
changed since 1893 when they were 
first draftee? and incorporated in the 
Regulations for the Government of the 
Navy of the United States as paragraphs 
285, 286, and 287, section 4, chapter V, 
and when principles of international law 
permitted a stale to use force for the 
protection of its citizens and their 
property in a foreign state. From a 
mere perusal of these articles it seems 
that the enforcement of duties under 
international law is left largely to the 
discretion of the commanding officer. 
In fact, prior to 1928 this was largely 
so. In recounting 76 instances where 
armed forces of the United States op- 
erated on foreign soil or engaged in 
actual hostilities with another nation on 
her soil under the guise of protecting 
U.S. citizens or their property abroad, 
Milton Offutt states: 

What has generally hap- 
pened ... is that naval officers 
commanding ships or squadrons 
on foreign stations have taken 
such action as they believed neces- 
sary for the protection of Ameri- 
can lives and property, and have 
reported their action to the Secre- 
tary of the Navy after their 



government has been committed 
to their procedures." 

These cases covered a timespan from 
1813 to 1926, and on only one occasion 
did the Government refuse to approve 
the decision of a commanding officer of 
sending a landing party ashore. 6 

There have been many changes since 
the drafting of these regulations, both in 
our foreign policy and in the accepted 
principles of international law, yet the 
regulations still remain. Some of the 
language as well as the concepts appear 
dated. For instance, the regulations ad- 
dress themselves to the 19th century 
concept of "self-preservation," generally 
conceded as broadening the principle of 
"self-defense" to the point where it was 
quite inadmissible. Waldock quotes Hall 
as saying "in the last resort almost the 
whole of the duties of states are sub- 
ordinated to the right of self-preserva- 
tion," while himself maintaining that 
"such a doctrine would destroy the 
imperative character of any system of 
law in which it was applied, for it makes 
all obligation to obey the law merely 
conditional; and there is hardly an act 
of international lawlessness which it 
might not be claimed to excuse." 

Of far greater significance is the 
prohibition of the use of force against 
the political independence and terri- 
torial integrity of states set forth in the 
United Nations Charter and also em- 
bodied in the charters of regional or- 
ganizations and security alliances. As 
most instances involving the use of force 
to protect lives and property of our 
nationals abroad occurred in Latin 
America, an understanding of the im- 
pact made by Latin American regional- 
ism with its strong attitudes of noninter- 
vention, state sovereignty, self-deter- 
mination, and exclusive competence on 
this traditional right of international law 
is crucial when evaluating the ulilitv of 
these provisions of U.S. Navy Regula- 
tions which imposed upon the naval 
officer the duly to exercise his inde- 



19 



pendent judgment when the lives or 
property of U.S. nationals are in jeop- 
ardy. 

ll-THE INTER-AMERICAN SYSTEM: 
AN OVERVIEW 

Historical Experience. The present 
Charter of the Organization of Ameri- 
can Slates, dated 2 May 1948, must be 
looked at in the perspective of history. 
lis evolution has been described as a 
"transition from an unwritten to a 
written constitution." As early as 
182b, Simon Bolivar recognized the 
weakness of American Republics and 
called for a general American congress 
to convene in Panama for the purpose 
of signing treaties of alliance. Although 
attended by only four countries, Colom- 
bia, Peru, Central America, and Mexi- 
co, the Congress of Panama may be 
said to have laid the cornerstone for 
future hemispheric solidarity and under- 
standing. The charter's origins may also 
be traced to the Monroe Doctrine, 
enunciated in a Presidential message of 
2 December 1823, which proclaimed 
nonintervention of Europe in the gov- 
ernments of the Western Hemisphere. 
Roth the Monroe Doctrine and the 
Panama Treaty were directed primarily 
toward the problem of defending the 
sovereignty of states in the Western 
Hemisphere, but unlike the Monroe 
Doctrine, which was a unilateral procla- 
mation by the United States, the 
Panama Treaty envisioned binding all 
member states to mutual defense. 

There were a series of inter- American 
conferences between 1826 and 1889, 
having as their principal object common 
defense and mutual protection of par- 
ticipating states, but there was no true 
hemispheric representation until 1889 
when the United States took its first 
positive step toward creating a hemi- 
spheric organization by calling for the 
First International Conference of 
American States to meet in Washington, 
D.C. There, in 1890, with all the 



countries of the Western Hemisphere 
represented, except the Dominican Re- 
public, were laid the bases for the Pan 
American movement by the creation of 
a permanent inter-American organiza- 
tion, the Commercial Bureau of the 
American Republics, later designated 
the Pan American Union. 

History indicates that the United 
States was motivated more by a desire 
to establish economic relations than a 
desire to insure the maintenance of 
political and social stability within the 
framework of the Pan American Union. 
The reason why is evident. The United 
Slates, by this time a world power, saw 
little need for mutual defense arrange- 
ments with her neighbors to the south 
who were characterized by political 
instability and economic backwardness. 
In the years following the foundation of 
what Latin American governments must 
have hoped was a true international 
organization, as envisioned by Simon 
Bolivar in 1826, the United States 
assumed not only the role of protector 
of the Western Hemisphere, but also 
that of mentor. Under the Roosevelt 
corollary to the Monroe Doctrine, the 
United Stales asserted the right to inter- 
vene in Latin American countries in 
order to prevent the intervention of 
European powers in circumstances of 
political or economic chaos. European 
intervention at this time was quite 
common and deemed justified to collect 
overdue debts. Such intervention might 
have given European powers a pretext 
for reestablishing bases in the Western 
Hemisphere and thereby weaken na- 
tional security. If Latin American coun- 
tries did not exercise their sovereign 
powers responsibly enough to avoid 
giving European powers a just cause lor 
intervention, the United States, to pro- 
tect itself from harm, stepped in. Using 
this rationale, the United Slates inter- 
vened in the Dominican Republic, Haiti, 
and Nicaragua and used its power to 
gain strategic objectives in Cuba, Puerto 
Rico, and Panama. Instead of ushering 



20 



in an era of understanding and interna- 
tional cooperation, the creation of the 

Pan American Union was a prelude to 
an era of frank and deliberate military 
intervention in Latin America under the 
pretext of upholding the Monroe Doc- 
trine. The Department of State Bulletin 
lists 35 examples of U.S. intervention in 
the affairs of Latin America from 1812 
to 1926. 3 

Fight for a Concept. It is small 
wonder then that the development of 
the inter-American system during the 
years 1890-1933 was characterized hy 
Latin American efforts to secure prin- 
ciples of nonintervention that would 
govern relations among memher states 
of the Fan American Union or that 
these principles loom so large in the 
present Charter of the Organization of 
American Slafl.cs. On the other hand, the 
U.S. position on intervention was not 
without merit and had a strong hasis in 
then existing international law. The 
United States was particularly con- 
cerned with protecting its nationals and 
their property from violence in Latin 
American countries when the local au- 
thorities were unahle or unwilling to 
protect them. The views of the U.S. 
Covernmenl on this right of interven- 
tion were very clearly expressed hy 
Charles Lvans Hughes, American dele- 
gate at the Havana Conference in 1928, 
in resisting the principle advocated hy 
the Latin American countries that no 
slate had the right to intervene in the 
internal or external affairs of another. 

What are we to do when govern- 
ments hreak down and American 
citizens are in danger of their 
lives? ... I am not speaking of 
sporadic acts of violence, or of the 
rising of mohs, or of those dis- 
tressing incidents, which may 
occur in any country however 
well administered. I am speaking 
of the occasions where |sie| gov- 
ernment itself is unahle to 



function for a time because of 
difficulties which confront it and 
which it is impossible for it to 
surmount. 

Now it is a principal [sic] of 
international law that in such a 
case a government is fully justified 
in taking action— I would call it 
interposition of a temporary 
character— for the purpose of 
protecting the lives and property 
of its nationals. I could say that 
that is not intervention . . . Of 
course the United States cannot 
forego its right to protect its 
citizens. 4 

However, hy 1928 it also had be- 
come clear to the United States that any 
meaningful regional association in the 
Western Hemisphere would depend on a 
shift from its position of unilateral 
intervention, and that year saw the 
abandonment of the Roosevelt corollary 
to the Monroe Doctrine in the Clark 
Memorandum. Thereafter, military in- 
terventions in Haiti and Nicaragua 
were liquidated; the Piatt amendment 
under which the United States was given 
the right to intervene in Cuba was 
ahrogaled in 1934, and a new treaty was 
negotiated with Panama concerning the 
Panama Canal in 1936. In 1933 the 
United Stales, at the Seventh lnler- 
American Conference, accepted in prin- 
ciple the doctrine of nonintervention 
and then embraced it totally in 1936 at 
the Buenos Aires Conference for the 
Maintenance of Peace. Hy signing an 
Additional Protocol relative to noninter- 
vention, 6 the United Slates was gener- 
ally regarded as unequivocally renounc- 
ing the principle of intervention for the 
protection of the lives and property of 
nationals. 

If any doubt remained regarding the 
view of the United Slates, il was dis- 
pelled in I9. r )8 when Secretary of Stale 
Dulles, addressing himself to the civil 
strife in Lebanon, said: 



21 



Now what we would do if Ameri- 
can life and properly was |sic| 
endangered would depend, of 
course, in the firsl instance upon 
what we were requested to do by 
the Government of Lebanon. We 
do not introduce American forces 
into foreign countries except on 
tbe invitation of the lawful gov- 
ernment of the Slate concerned. 

This change of policy on the part of 
the United Slates was occasioned not 
only by a realization that its past policy 
of unilateralism and intervention had 
failed to establish strong viable govern- 
ments and had evoked deep resentment, 
but also by a realization thai hemi- 
spheric solidarity offered the besl se- 
curity against the subversive activities of 
the European powers with their large 
communities in Latin America. This 
hemispheric solidarity manifested itself 
in an inter-American security system 
with two focal points: consultation if 
peace were threatened (Buenos Aires, 
1936) and collective action to repel or 
prevent aggression (Havana, 1910). 

The New Instruments. The change- 
over from a policy of unilateral inter- 
vention to one of collective respon- 
sibility for hemispheric solidarity is 
embodied in llie two documents that 
are the foundations of the Organization 
of American Slates: the Inlcr-Amcrican 
Treaty of Reciprocal Assistance of 1947 
(called the Rio Treaty) and the Charier 
of the Organization of American States 
signed in 1948. Although both of these 
documents postdated the United Na- 
tions Charier, the basic principles con- 
tained in them were firmly fixed at the 
time of the signing of the Charter in San 
Francisco in 1945. The Latin American 
Slates, having won from ihe United 
Stales recognition of the principle of 
nonintervention, were anxious lo pre- 
vent any hnpoteney lo iheir regional 
organization, particularly in the area of 
intervention by non-American powers in 



the maintenance of peace and security 
among American Slates. Largely as a 
result of their insistence in maintaining 
the integrity of their regional security 
system, provisions were incorporated in 
the United Nations Charter assuring the 
continued viability of regional organiza- 
tions in areas relating to the main- 
tenance of international peace and 
security. 

The ("barter of the Organization of 
American Stales, signed in J 948, is "an 
amazing composil [sic] of rules, agree- 
ments, principles, and aspirations," 1 ° 
none of which are new but merely the 
codification, concentration, and recon- 
struction of what had transpired in the 
inter- American system since 1826. * 1 
That nonintervention continued to be 
the fundamental principle of inler- 
Amcrican solidarity is clear from the 
language of the charter. According to 
article 15: 

No Slate or group of Slates has 
the right to intervene, directly or 
indirectly, for any reason what- 
ever, in the internal or external 
affairs of any other Stale. The 
foregoing principle prohibits not 
only armed force but also any 
other form of interference or at- 
tempted threat against the per- 
sonality of the Stale or against its 
political, economic and cultural 
elements. 

And article 17: 

The territory of a State is in- 
violable; it may not be the object, 
even temporarily, of military 
occupation or of other measures 
of force taken by another State, 
direclly or indirectly, on any 
grounds whatever. No territorial 
acquisitions or special advantages 
obtained either by force or by 
oilier means of coercion shall be 
recognized. 

The principle of nonintervention is 



22 



extended further by article 10, which 
affirms: 

No Slate may use or encourage 
the use of coercive measures of an 
economic or political character in 
order to force the sovereign will 
of another State and ohtain from 
it advantages of any kind. 

Thus extended in articles 15 through 
17, the principle of nonintervention had 
to be reconciled with that of collective 
security, already recognized in the Rio 
Treaty and the United Nations Charter. 
Article 19 of the charter thus provides: 

Measures adopted for the main- 
tenance of peace and security in 
accordance with existing treaties 
do not constitute a violation of 
the principles set forth in Articles 
15 and 17. 

III-1NTERVENTI0N-S0ME 

EXAMPLES OF 
CONTEMPORARY POLICY 

Intervention is a word which is 
often used quite generally to 
denote almost any act of inter- 
ference hy one state in the affairs 
of another; hut in a more special 
sense it means dictatorial inter- 
ference in the domestic or foreign 
affairs of another state which im- 
pairs that stale's independence. 1 

While all nations agree on the hroad 
principle that intervention is unlawful, 
there is less agreement on just what is 
encompassed hy the term "interven- 
tion." The traditional doctrine of re- 
lating intervention to the use of or 
threat to use force does not conform to 
the language of article 15 of the charter, 
hut if intervention is carried to the 
ultimate and impractical extreme in- 
sisted upon l»y the drafters of the 
charter to cover all acts that may be 
viewed as pressure, it hecomes nebulous. 
Some act of every nation may send its 



reverberations everywhere. The United 
States, by the exercise of its economic 
and political policies, whether they be 
foreign or domestic, exercised through 
action or inaction, may intervene in 
Latin American affairs as effectively as 
did the sending of Marines in earlier 
times. It has often been said, in more 
than jest, that if the economy of the 
United States sneezes, the countries of 
Latin America catch pneumonia. Will 
not, then, the participation of the 
United States in the Alliance for Prog- 
ress inevitably lead to an accusation of 
intervention? Hy its very presence, the 
United States affects the internal affairs 
of its neighbors to the south. Thus, by 
painting with such a broad brush, the 
drafters of the charter may have de- 
feated the very purpose of the prohibi- 
tion. If one becomes enamored by the 
all-encompassing euphonic concept of 
nonintervention advocated by these 
Latin American jurists, one is left with a 
concept that is bound to fail as incom- 
patible with the realities of international 
politics. 

It is hard to condemn prohibitions 
on intervention for they are certainly 
part of a quest for an ideal seen as the 
equal sovereignty and independence of 
all nations. However, a more realistic 
approach than thai adopted at Uogota is 
expressed by the United Kingdom in the 
report of the Special Committee on 
Principles of International Laws Con- 
cerning Lriendly Relations and Co- 
operation Among States: 

... it would be recognized that in 
an interdependent world, it is 
inevitable and desirable that states 
will be concerned with and seek 
to influence the actions and 
policies of other stales, and the 
objective of international law is 
not to prevent such activity, but 
rather to insure that it is 
compatible with the sovereign 
equality of states and self- 
determination of their peoples. 



23 



Nice sounding words, but what of the 
objectivity of international law if the 
onus is to be placed there? If there is 
lack of agreement on lawful interven- 
tion when economic issues are involved, 
the problem becomes indeed chaotic 
when examining areas where political 
issues are paramount. The interventions 
in Greece, Lebanon, Algeria, the Congo, 
the Suez Canal, and Vietnam are ex- 
amples of cases where conflicting politi- 
cal interests of parties concerned pro- 
duced not only conflicting statements 
of facts, but also incompatible legal 
analyses. 4 In our own hemisphere we 
can find examples in Guatemala (1954) 
and the Dominican Republic (1965). 

Guatemala. The Guatemalan crisis of 
1954 is cited as confirming the greater 
fear Latin Americans have of U.S. inter- 
vention than oi intervention from out- 
side the Western Hemisphere. In March 
1951, Col. Jacobo Arbenz Guzman 
assumed the Presidency of Guatemala. 
His government quickly took on a de- 
cided Communist overtone. The 
American-owned United Fruit Company 
was informed in February 1953 that 
234,000 of its 300,000 acres on ihc 
Pacific coast would be expropriated 
under agrarian reform legislation en- 
acted in 1953. Compensation offered by 
the Guatemalan Government amounted 
to $600,000 in bonds, although the 
United Fruit Company estimated its 
value at $4,000,000. Later that same 
year, the Guatemalan Government ex- 
propriated the 174,000 acres owned by 
United Fruit on the Caribbean coast. 
The expropriated land was distributed 
to landless peasants. 7 

On 17 May 1954, the U.S. State 
Department announced that a shipment 
of arms had been landed in Guatemala 
after having been shipped from Commu- 
nist Poland. Ibis caused the United 
States to ship arms supplies to Honduras 
and Nicaragua pursuant to military assis- 
tance pacts concluded on 20 May and 
23 April. Shortly thereafter, on 18 June 



Guatemalan insurgent forces under the 
command of Col. Carlos Castillo Armas 
(a Guatemalan Army officer who had 
been in political exile since 1951) 
crossed the frontier from Honduras and 
advanced into Guatemala at several 
points. 8 President Arbenz Guzman 
charged Honduras and Nicaragua with 
open aggression in conjunction with the 
United States and called for an im- 
mediate meeting of the United Nations 
Security Council. 

Article 20 of the Charter of the 
Organization of American States pro- 
vides that "all international disputes 
that may arise between American States 
shall be submitted to the peaceful pro- 
cedures set forth in this Charter, before 
being referred to the Security Council 
of the United Nations. " In the same 
vein, article 2 of the Rio Treaty obli- 
gates the parties "to submit every con- 
troversy that may arise between them to 
methods of peaceful settlement and to 
endeavor to settle any such controversy 
among themselves by means of pro- 
cedures in force in the Inter- American 
System before referring it to the Gen- 
eral Assembly or the Security Council 
of the United Nations.' 1 When the 
Guatemalan charge came to the Security 
Council, the United Slates and the two 
Latin American members of the Se- 
curity Council maintained that the com- 
plaint should be referred to the Organi- 
zation of American Slates. By refusing 
to take substantive action on Guate- 
mala's appeals, the Security Council 
"implicitly adopted the view that a 
member of the Organization of Ameri- 
can States should, in fulfillment of its 
regional obligations and in the spirit of 
the United Nations Charter, seek to 
have the case resolved in the regional 
organization before bringing it to the 
Security Louncil. 

While the Security Council main- 
tained a hands-olf policy, the Inter- 
American Peace Commission (an agency 
of the Organization of American States) 
appointed a factfinding committee to 



24 



\isii Guatemala, Honduras, and Nica- 
ragua. However, on 27 June 1954, 
President \rhcnz Guzman had resigned, 
and alter negotiations with his succes- 
sors a five-man junta was sei up to rule 
Guatemala with Colonel Annas as Presi- 
dent. The new Guatemalan Government 
was officially recognized l»y the United 
Stales on 13 July 1954. Subsequently, 
al the request of the new administra- 
tion, the entire matter was withdrawn 
from the Organization of American 
Stales and the Security Council. 2 On 
29 December 1954, an agreement was 
reached between the new government 
and the United Fruit Company hy 
which all the lands expropriated under 
the land reform legislation were re- 
stored. 1 2 

The Dominican Republic. On 28 
April 1965, U.S. Marines landed in the 
Dominican Republic for the express 
purpose of protecting and evacuating 
U.S. citizens and other foreign nationals 
and to protect the U.S. Embassy in 
Santo Domingo. This action was 
occasioned by assertions that American 
lives were in danger and thai local 
authorities were no longer able to guar- 
antee the safely of U.S. citizens 13 
following a virtual civil war uprising 
pitting the leftist supporters of cx-IVesi- 
denl Juan Bosch ami rightwing (dements 
led hy Brig. (Jen. Llias Wcssin y Wcssin. 
Initially, only 105 Marines were 
landed. 14 By 30 April, about 2,500 of 
the estimated 3,000 U.S. nationals in 
the Dominican Republic had been 
evacuated together with other foreign 
nationals, 15 yet on J May, the United 
States increased its troop strength to 
6,20(). 16 On 2 May, President Johnson 
announced that he had committed a 
total of 14,000 troops to the Dominican 
Republic and staled their mission as 
protecting lives and preventing "another 
Communist Stale in ibis Hemisphere." 
I he 1* resident alleged thai what had 
begun as a popular democratic revolu- 
tion had been taken over by a band of 



Communist conspirators. 7 

The United Slates had made an 
immediate appeal to the Organization of 
Xmcrican Stales for assistance in carry- 
ing oul her self-appointed task. Many 
Latin American countries were highly 
critical of the U.S. military intervention, 
contending thai it contravened article 
17 of the Charter of the Organization of 
American Stales, which holds the terri- 
tory of a stale inviolable and states that 
it may not be ihe object of even 
temporary military occupation for any 
reason whatsoever. The United Slates 
pressed for the formation of an inter- 
American peace force to mullilaleralize 
the intervention at the Tenth Meeting of 
Consultation convened on 1 May. 
Opponents worried that a dangerous 
precedent would be established in the 
sanctioning of "collective intervention" 
hut undoubtedly hoped that the estab- 
lishment of the peace force would bring 
the intervention to an end and salvage 
the prestige of the inter-American sys- 
tem. Supporters, on ihe other hand, 
were probably anxious lo cover up the 
U.S. intervention with collective mea- 
sures. An inter-American peace force 
was formed on 6 May lo operate under 
the authority of the Tenth Meeting, but 
the participation by Latin American 
countries was symbolic oidy. 

Aftermath. The implications of the 
Cualemalan incident in 1954 were seri- 
ous for Latin America. Not only was the 
precedent established that a member of 
the Organization of American States 
would have to seek resolution of its case 
in the regional organization before 
bringing it before the Security Council, 
but also the vast imbalance of power in 
the Western Hemisphere indicated thai 
very little could be accomplished within 
the regional organization on behalf of a 
member stale opposing the United 
Slates or ils interests. There was little 
douhl in the minds of many Latin 
Americans that the United Stales, in 
collaboration with Honduras and 



25 



Nicaragua (two of ihc smaller and least 
significant Latin American states), had 
directly intervened in the affairs of 
Guatemala. Miguel Ydigoras Fuentes, 
who assumed the Presidency of Guate- 
mala in 1958, has indicated that the 
overthrow of the Arbenz Guzman gov- 
ernment was masterminded by the U.S. 
Ambassador to Guatemala, John E. 
Feurifoy, and implied further that 
Colonel Armas was in the employ of the 
United Fruit Company. 

If "the case of Guatemala had some- 
what slained the shining armor of the 
OAS," U.S. intervention in the 

Dominican Republic did far more, seem- 
ingly treating the Organization as a 
rubber stamp. The United States main- 
tained that if time had permitted the 
entire matter would have been initially 
referred to the Organization of Ameri- 
can States 23 and that its own unilateral 
action was only a necessary prelude to 
multilateral collective action and partici- 
pation by the Organization of American 
Slates. There is no doubt that, given 
the intense pathological fear of interven- 
tion prevalent in Latin America, a multi- 
lateral, inter-American intervention 
would be far less repugnant to world 
opinion and acceptable to the stale 
intervened than would unilateral action 
by the United Stales. While as Wright 
observes, "intervention does not gain in 
legality under customary international 
law by being collective rather than 
individual,"' as pointed out by Lillich, 
"in humanitarian situations, the fact 
that more than one slate has partici- 
pated in the decision lo intervene les- 
sens the chance that the intervention 
will be used for reasons of self- 

. ,"2 6 

interest. 

It must be pointed out, however, 
that the intervention in the Dominican 
Republic helped to produce stability, 
allowing a free election in which all 
candidates had an equally fair chance to 
win. Neither of the two major candi- 
dates demanded withdrawal of forces, 
and while neither was overly enthusi- 



astic about the presence of foreign 
forces on Dominican soil, neither re- 
acted "with the typical outrage of na- 
tion-stale leaders to ihe presence" of 
the troops. 

IV-INTERVENTION: 
WHEN AND HOW 

As intervention was recognized to be 
contrary lo international law, attempts 
were made to justify acts of interven- 
tion as legitimate cases of protection of 
nationals abroad or of self-defense. In 
this regard, "intervention was not so 
much a right as a sanction against a 
wrong or threatened wrong." 

Protection of Lives and Property. A 

stale s use of force to protect the lives 
and property of its nationals abroad was 
universally accepted as lawful by the 
jurists of the 19th and early 20th 
centuries. Ihe justification for this 
concept was founded on the principle 
that international law's protection of 
sovereignty had a corollary duty im- 
posed on a state to accord protection to 
foreign nationals. If international law 
prohibited foreign intervention of a 
forceful or coercive character, it is 
because it imposed a corresponding 
duty on the slate not to create or 
tolerate conditions that justified such 
interventions. Thus, every stale must 
afford protection lo aliens on her soil in 
conformity with civilized minimum 
standards, and because individuals were 
viewed in international law as objects 
and therefore an extension of their 
domiciliary state, any injury done an 
alien was an injury to his home state 
who then had a legal right to seek 
redress. As private property and 
human freedom were interrelated, it 
followed that there was an equal inter- 
national law principle affording a home 
state the right to protect the private 
properly of her nationals in a foreign 
stale. Today's utility of this principle 
has been drastically changed, particu- 
larly in Latin America. 



26 



Such authorities on Latin America 
and the Organization of American 
States as the husband and wife team of 
\.J. Thomas and Ann Van Wynen 
Thomas note that: 

In view of the prohibition of the 
use or threat of force against the 
territorial integrity of a stale set 
forth in the United Nations Char- 
ter, the strong language pro- 
hibiting intervention in the ("bar- 
ter of the Organization of Ameri- 
can Stales, and the prohibition 
against military occupation of a 
state or the use of other measures 
of force against a state, also in the 
Charter of the Organization of 
American Slates, il can be said 
that armed intervention by a state 
on behalf of its nationals who 
have suffered injury and a denial 
of justice at the hands of another 
government in order to enforce 
reparation, to punish and prevent 
future repetition, i.e., lo impose 
sanctions in the form of reprisals, 
has been made illegal. 

The Thomases maintain that the legality 
of protection of nationals by means of 
intervention must therefore rest on 
some "primary right which is excluded 
from Ilit; non-intervention ban." Such 
a primary right is the right of self- 
defense reserved in the United Nations 
Charter, article 51; the Charter of the 
Organization of American Slates, ar- 
ticles 18 and 19; and ihe Rio Treaty, 
article 3. This right, a strictly limited 
one, must be determined by reference 
to customary international law. 8 



of means and no moment for delibera- 
tion* 1 and further, the action taken must 
involve "nothing unreasonable or exces- 
sive, since the act justified by the 
necessity of self-defense must be limited 
by that necessity and kept clearly 
within it." The conditions under which 
a state may be entitled, as an aspect of 
self-defense, to intervene in another 
stale, in order to protect its nationals 
from injury, were formulated by Profes- 
sor Waldock in 1952 as follows: "There 
must be (1) an imminent threat of 
injury to nationals, (2) a failure or 
inability on the part of the territorial 
sovereignty to protect them, and (3) 
measures of protection strictly confined 
to the subject of protecting them 
against injury. 

Using these guidelines, the original 
limited intervention in the disorders of 
the Dominican Republic on 28 April 
1965 to protect U.S. citizens from 
imminent danger in a situation of 
anarchy did not violate standards of 
customary international law. The 
United States chose, however, not to 
rest its case on the principle of self- 
defense. Indeed, both the United Stales 
and later the Organization of American 
Stales carefully avoided the use of the 
term "self-defense, " relying instead on 
maintaining that its actions were sanc- 
tioned by ihe recognized principle of 
humanitarian intervention. The rea- 
son why is clear. Any careful reading of 
article 51 of the United Nations Charier 
indicates that both individual slates and 
regional organizations must report to 
and take orders from the United Na- 
tions for action taken under the guise of 
the "inherent right 11 of self-defense. 



Self-Defense. The best statement of 
the conditions for the exercise of this 
right of self-defense is found in the 
principles laid down by Secretary of 
Slate Daniel Webster in ihe Caroline 
incident of 1837. There musl be, he 
said, "a necessity of self-defense, in- 
stant, overwhelming, leaving no choice 



Humanitarian Intervention. Tradi- 
tional international law recognized the 
principle of humanitarian intervention 
when a stale abused its right of sover- 
eignly by permitting within ils territory 
the treatment of ils own nationals or 
foreigners in a manner violative of all 
universal standards of humanity. 



27 



Some maintain that the strict principles 
of modern multilateral treaty law may 
have completely abolished this right, 
particularly the absolute ban on inter- 
vention of the Charter of the Organiza- 
tion of American States, 13 while others 
have continued to assert the legality of 
humanitarian intervention. Of these 
latter, the most eminent is Sir Hersch 
Lauterpacht, who finds intervention to 
be legally permissible "when a State 
renders itself guilty of cruelties against 
and persecution of its nationals in such 
a way as to deny their fundamental 
human right and to shock the con- 
science of mankind," 4 the rationale 
being that a decent respect for human 
rights and human dignity transcends the 
doctrine of absolute sovereignty insu- 
lating a state from interference by the 
international community. An even 
more meaningful justification is that of 
necessity, for there is no remedy except 
that of prevention. 

Some Conclusions on Intervention. 

It is not inevitable that men 
should ask whether it is morally 
right to intervene in the internal 
affairs of other nations. To some, 
it has obviously become a mere 
question of posture— how to keep 
a straight face while intervening, 
how to smile piously when dis- 
covered, and how to win converts 
during the moral upsurge that 
should accompany the exposure 
of others in the great game of 
intervention. 

Certainly it is difficult to equate inter- 
national law and the concepts of domes- 
tic law with which we are all familiar. In 
a domestic court the law seems clear, 
and it is usually quite enough to per- 
suade the presiding judge of what the 
law is. The question, oughl the court to 
follow the law, seldom arises. If sound 
policy dictates a change in existing law, 
constitutional provisions are provided to 



seek such a change. International law, 
on the other hand, has no international 
legislature to make the rules of the game 
for all to accept and follow. It has no 
system of courts and no police force. 
Moreover, the rules of international law 
are far from being precise. There is 
often a gap between what looks legal 
and what looks reasonable. This gap is 
most often closed by asserting that what 
looks reasonable must be legal. 

A far better view would be to make 
an objective determination of what the 
rule of international law is and then 
seek to follow it. As Fisher points out: 

Rules of law must be related not 
only to the policies they are 
designed to serve, but also to the 
means by which compliance with 
the rules is to be sought. For the 
foreseeable future the basic means 
by which compliance with inter- 
national law may be obtained is 
through the enlightened self- 
interest of the various govern- 
ments. If this is so, we must be 
prepared to argue that respect for 
international rules does in fact 
serve the interest of each govern- 
ment. The most fruitful perspec- 
tive from which to discuss a ques- 
tion of international law may, 
therefore, be the one which seeks 
to persuade a government official 
of what a government ought to 
do. 

Instead of taking the position that there 
is no rule of international law to deal 
with certain situations that are bound to 
arise when dealing with the prohibition 
of resort to force and nonintervention 
principles contained in the United Na- 
tions Charier and the Charter of the 
Organization of American Stales, and 
therefore the proper course is to pro- 
ceed with whatever practical actions will 
most advance the general interests ol 
the United Stales, would it not be 
heller to ask if our Nations interests 



28 



would be belter served by making an 
honest and dclermincd eflort to develop 
international law and live by it? 

Vpplying this concept, il is con- 
sidered very doubtful that interventions 
solely lor the protection of properly of 
nationals on foreign soil have any basis 
in the modern law. Although the Suez 
erisis of 1956 is generally regarded as 
sounding the death knell of this con- 
cept, we can look to our own Govern- 
ment in our own hemisphere for an- 
other example. In May 1959 the 
Agrarian Reform Law in Cuba provided 
for expropriation of properties owned 
by U.S. citizens. The basis of evaluation 
was universally conceded to be unfairly 
low, and compensation was in the form 
of low interest Cuban bonds redeemable 
in 20 years. Under this law, property 
was confiscated without court orders 
and in some cases without written au- 
thorization. No inventories were taken 
and no receipts given. The U.S. Govern- 
ment did not question the expropriation 
law but stated that it expected compen- 
sation in accordance with accepted rules 
of international law. Within I year, 
$900,000,000 worth of U.S. citizens 1 
investments were appropriated. Cuba 
then took the position that any duty to 
compensate would impose undue hard- 
ships on the Cuban Government. Ry 
doing nothing, the V.S. Government is 
seen as abrogating any right she may 
have maintained existed for interven- 
tions of this type, for international law, 
as domestic law, is made through the 
actions of governments and the prece- 
dents they create. 

Interventions for purely humani- 
tarian reasons are also suspect. In the 
Dominican Republic, prior to the over- 
throw of Tiiijillo, years of flagrant and 
widespread violations of the human 
rights of Dominican citizens were ig- 
nored. Following recognition of the 
(.astro government in Cuba, a wave of 
political executions sickened the United 
Stales, but our Government, in line with 
the general rule of refraining from 



pressing foreign governments to treat 
their own citizens humanely, remained 
silent. When the concept of humani- 
tarian intervention was resurrected in 
April of 1965 as justification for our 
initial intervention in the Dominican 
Republic, il was done to avoid reliance 
on the available legal basis of self- 
defense which would have occasioned 
involvement with the United Nations. 
This is not to condemn the right of 
humanitarian intervention within the 
collective framework of the United Na- 
tions or the Organization of American 
States. The latler organization is par- 
ticularly unique in the stress it lays on 
the use of international law in matters 
dealing with the international concern 
for fundamental human rights, al- 
though the already discussed sensitivity 
of Latin American States with respect 
to intervention has enhanced the diffi- 
culty of devising effective international 
measures for the protection of human 
rights. The Inter- American Gommission 
on Human Rights created in 1951 is 
authorized to consider individual com- 
plaints of violations of certain basic 
rights, among them the right to life and 
liberty, but can only act in examining 
and reporting on conditions in the 
various states. Thus far, this Commis- 
sion has proved unable to "break the 
crust of the entrenched thinking on 

, ,« "2 

intervention. 

In any treatment of the subject of 
intervention, mention must be made of 
the views of those who maintain that it 
is policy and not law that determines 
the actions of states in their dealings 
with one another. Foremost among 
these is former Secretary of Slate Dean 
Acheson who, in commenting on the 
legal position of the United Stales in the 
Cuban missile crisis, staled that "prin- 
ciples, certainly legal principles, do not 
decide concrete cases," and that inter- 
national law "simply does not deal with 
quest ions of ultimate power." Al- 
though this position is unsatisfactory as 
an appraisal of international law, it is, 



29 



unfortunately, a realistic assessment of 
the manner in which states approach the 
conduct of international affairs. 

Self-defense, within the narrow con- 
fines of the Wehster definition with 
added emphasis on the principle of 
proportionality in measures limited to 
reasonably repelling the danger, may, in 
the final analysis, be the only legally 
acceptable grounds for intervention. To 
send 405 troops into the Dominican 
Republic to evacuate U.S. citizens and 
other foreign nationals meets this test. 
To build up to 22,289 troops 22 does 
not. To declare, as did President John- 
son in his speech of 2 May 1965, in 
support of the massive involvement, 
that the United States would not toler- 
ate another Communist government in 
the Western Hemisphere is to imply 
that the United States reserves the right 
to determine whether or not there is 
sufficient Communist involvement in an 
internal revolution in the Western 
Hemisphere to be regarded as dangerous 
by the United States, and, if so, the 
right to intervene to prevent a Commu- 
nist takeover. This, in turn, implies 
possible intervention in any of the Latin 
American Slates. 24 Hearing in mind 
that "the shape of things to come is in 
no small way determined by the actions 
of great powers,"" 5 was there any 
reason for us to be shocked by the 
language of the "Brezhnev Doctrine" 
when Russia intervened in Czechoslo- 
vakia in August 1968? 

"In a world built upon national 
sovereignties and jurisdictions and the 
equality of independent states, any state 
that intervenes in the internal affairs of 
another undermines the institutional 
and legal foundations on which its own 
existence rests." 26 Until there is an 
effective international organization to 
cope with the nuances of power politics, 
the only hope for peace and an orderly 
society lies in the major powers' realiza- 
tion that restraint and dedicated ad- 
herence to established and accepted 
principles of international law are 



paramount in the interest of survival. 
V-ANALYSIS AND CONCLUSIONS 

That the United States used force to 
protect its nationals and their property 
in the Latin American States in the 19th 
and early 20th centuries is a matter of 
documented fact. It is also clear that 
whatever the posture of the United 
Stales prior to World War II, its legal 
obligations have since changed consider- 
ably, particularly in view of its partici- 
pation in the United Nations and the 
Organization of American Slates. While 
a commanding officer may have acted 
with impunity in the early 20th century 
with regard to protecting U.S. citizens 
on foreign soil, such is not the case 
today. The fact remains, however, that 
although customary international law 
has changed and treaty obligations 
impose restraint, the problem of pro- 
tecting nationals can hardly be termed 
obsolete. That the United States must 
protect its citizens when a local govern- 
ment is unable or unwilling to protect 
them is as true today as it was in 1928 
when Secretary Hughes addressed this 
problem to the Sixth Conference of 
Inter- American Stales. 

Recognizing that prevention is the 
only real remedy and that a state still 
has a duly, if not a right, to protect its 
citizens, how then is this protection to 
be afforded? If action is taken uni- 
laterally, a plea of safety of nationals or 
even humanitarian intervention may, 
unfortunately, be a pretext for interven- 
tion having nationalistic or other ul- 
terior aims. While most of the examples 
of use of force cited by Offult were 
confined to the purpose avowed— the 
protection of nationals -many possessed 
unavoidable political significance. Such 
significance would be inescapable today. 
Certainly there is no country in Latin 
America in which we do not have strong 
political and economic interest. 

Inter-American collective interven- 
tion through the auspices of the 



30 



Organization of \ men can Stairs would 
solve mam of the problems inherent in 
unilateral action. A permanent Inter- 
Vmerican Peace Force would provide a 

partial answer to the practical problem 
of devising a system capable of swift 
action in future emergencies similar to 
the Dominican Republic crisis of L965. 
The United Stales favors the creation of 
such a force, and at the Second Inter- 
Vmerican Conference at Rio dc Janeiro 
in November 1965 tried to interest the 
Latin American nations in just that. 2 
Most Latin American Stales opposed 
the idea. Their view was forcefully 
stated in Chilean Foreign Minister 
Gabriel Valdes' speech, when he said: 
'The inter-American force would give 
our regional system a negative and 
dangerous ideological connotation, it 
would destroy the fundamental prin- 
ciple of non-intervention and would 
threaten to divide us into irreconcilable 
blocs." Professor Plank suggests that 
Latin Americans would consider that 
any such force would be collective in 
name only; that the dominant position 
of the United States would mean that 
any intervention would have to be 
acceptable to and dominated by it. At 
any rale, the U.S. intervention in the 
Dominican Republic will leave lasting 
scars, and it is doubtful that such a 
force will ever be created. 

Thus politically undesirable as it may 
be, unilateral intervention would appear 
to be the only answer. As discussed 
supra, to be lawful such intervention 
would have to be encompassed within 
the concept of self-defense. It would 
have to meet the test of necessity, and, 
above all, it would have to meet the 
standard of proportionality. As pointed 
out by Professor Alford, "military 
action taken to acquire territory, super- 



sede a government, obtain special con- 
cessions or lo secure various political 
advantages, seems easily distinguishable 
from limited action to protect . . . citi- 
zens which is terminated when the 
persons are withdrawn or are otherwise 

1 "5 

secured. 

In today's politically orienled world, 
any decision lo intervene under the 
principle of self-defense for the protec- 
tion of the lives of U.S. citizens should, 
ideally, be made at the highest Govern- 
ment level, leaving to the naval com- 
mander only the task of implementing 
this decision. However, since, in the 
final analysis, prevention is the only 
remedy and timeliness is essential lo 
prevention, it is not difficult to envision 
a situation where, despite modern com- 
munication techniques, the com- 
manding officer must be prepared to 
determine the best course of action 
under the circumstances and then imple- 
ment his own decision. 

Authority for such a decision exists, 
as it has since J 89.'}, in articles 061. 'J and 
0614 of U.S. Navy Regulations. It re- 
mains only to update article 0614 to 
conform to modern standards of cus- 
tomary international law. It is suggested 
(hat this can he accomplished by the 
simple expediency of deleting any refer- 
ence lo "property" and substituting the 
words "self-defense" for the outmoded 
language "self-preservation " wherever 
the latter appears. Additionally, bearing 
in mind the serious international conse- 
quences that an application of force 
could entail, it is suggested that specific 
operation ordrrs be written with a view 
toward giving commanding officers 
definitive guidance in the enforcement 
of this right, emphasizing the concept of 
evacuation over all other means of 
protection. 



31 



FOOTNOTES 
I-THE NAVAL OFFICER AND INTERNATIONAL LAW 

1. Alfred T. Mahan, Armaments and Arbitration (New York: Harper, 1912), p. 216. 

2. A definition of international law propounded by Charles C. Hyde, International Iaiw, 
Chiefly as Applied and Interpreted by tlie United States (Boston: Utile, Brown, 1915), v. I, p. 1. 

3. Bernard L Austin, "A Message from the President of the U.S. Naval War College," JAG 
Journal, October-November i 96 I , p. 138. 

4. Ian Brownlie, International Law and the Use of Force by States (Oxford: Oxford 
University Press, J 963), p. 289. 

5. Milton Offutt, The Protection of (Citizens Abroad by the Armed Forces of the United 
States (Baltimore: Johns Hopkins Press, 1928). p. 5-6. 

6. Ibid., p. 14-15. Offutt reports that Commodore David Porter appeared before a General 
Court Martial in July 1825 and was held to have exceeded his powers and suspended from the 
Navy for 6 months. Feeling his sentence unjust, he resigned his commission and accepted an offer 
to become an admiral in the service of Mexico at a reputed salary of $25,000 a year. 

7. W.E. Hall quoted in James L. Brierly, The Law of Nations, 6th ed. (New York: Oxford 
University Press, 1963), p. 404. 

8. Ibid. 

II-THE INTER-AMERICAN SYSTEM: AN OVERVIEW 

1. Charles G. Fenwick, 'The Organization of American Slates: the Transition from an 
Unwritten to a Written Constitution, " The American Journal of International Law, April 1965, 
p. 316. 

2. The present-day republics of Ecuador, Panama, and Venezuela were embraced in 
Colombia, and Central America included Costa Rica, El Salvador, Guatemala, Honduras, and 
Nicaragua. Thus, 11 of the present-day states were represented. The United Slates was invited 
and eventually accepted, but her delegates failed to arrive before the meeting adjourned. Charles 
G. Fenwick, "Pan-American Conferences," Encyclopaedia Rriiannica, 1966, v. XVII, p. 213. 

3. "Authority for the President to Repel the Attack in Korea," The. Department of Stale 
Bulletin, 31 July 1950, p. 177. It is interesting that this compilation of uses of land and naval 
forces of the United States, submitted as part of a Department of State memorandum justifying 
the President's use of armed forces to repel the North Korean attack on the Republic of Korea in 
June 1950, was submitted to the United Nations 15 years later, on 4 May 1965 by N. Fedorcnko, 
Permanent Representative of the U.S.S.H. to the United Nations during discussion of the 
Dominican crisis. Upon its submission, Representative Fedorcnko stated that it "enumerates the 
invasions by United States armed forces of the territory of the Dominican Republic and other 
countries of Latin America, Asia, and Africa for the purpose of intervening in the internal affairs 
of those countries." United Nations, Security Council, Official Records, Twentieth Year, Doc. 
No. S/6325 (New York: 1965), p. 82. 

4. Report of the Delegates of the United States of America to the Sixth International 
Conference of American States, Washington: 1928, p. 14-15, quoted in Brownlie, p. 293. 

5. Inman relates: "In 1912 United Slates intervention started in Nicaragua; it meant the 
maintenance of a marine guard in that country for twenty years, with the exception of a few 
months." Samuel G. Inman. Isitin America. Its Place in World Life (Chicago: Willelt, Clark, 
1937). p. 126-127. 

(>. The Additional Protocol provided that intervention of any of I lie contracting parlies, 
directly or indirectly, and for whatever reason, in the internal or external affairs of any other 
party was inadmissible. Additionally, it contained the provision that violation "shall give rise to 
mutual consultation with the object of exchanging views and seeking methods of peaceful 
adjustment." Carnegie Endowment for International Peace, Division of International Law, The 
International Conferences of American States, First Supplement, 1933-1940 (Washington: 1940), 
p. 191. 

7. Brownlie, p. 98-99. 

8. "Secretary Dulles' News Conference of May 20," 77ie Department of State Bulletin, 9 
June 1958, p. 947. 

9. John C. Dreier, The Organization of American States and the Hemisphere Crisis (New 
York: Harper & Row, 1962), p. 23. 



32 

10. //«■</., p. 23. 

11. 0. Carlos Stoetzer, The Organization of American States; an Introduction (New York: 
Praeger, 1905), p. 11. 

III-INTERVENTION-SOME EXAMPLES OF CONTEMPORARY POLICY 

1. Brierly, p. 402. 

2. The Inter-American Committee on the Alliance for Progress was set up in 1963 as a 
special and permanent body including the following objectives: to improve and strengthen 
democratic institutions and to accelerate the economic integration of Latin America. The United 
States undertook to provide a major part of the $20 billion that would be required for these 
purposes over the next 10 years. A.H. Robertson, "Revision of the Charter of the Organization of 
American States," The International and Comparative Imw Quarterly, April 1968, p. 352. 

3. United Nations, General Assembly, Report of the Special Committee on Principles of 
International Law Concerning Friendly Relations and Co-operation among States, 19th Session, 
A/5746 (New York: 1964), p. 36. 

4. K.R. Schick, "Some Reflections on the Legal Controversies concerning America's 
Involvement in Vietnam," The International and Comparative Law Quarterly, October 1968, p. 
955. 

5. Gordon Connell-Smith, "The Inter- American System: Problems of Peace and Security in 
the Western Hemisphere," Robert W. Gregg, cd., International Organization in the Western 
Hemisphere (Syracuse, N.Y.: Syracuse University Press, 1968), p. 67. 

6. John D. Martz, Communist Infiltration in Guatemala (New York: Vantage Press, 1956). 

7. "Expropriation of United Fruit Company Plantations," Kecsing's Contemporary 
Archives, 13-20 March 1954, p. 13165. 

8. "Invasion by Insurgent Forces under Colonel Castillo Armas," Keesing's Contemporary 
Archives, 17-24 July 1954, p. 13677-13678. 

9. "Guatemalan Protest Sent to U.N. Security Council," The New York Times, 19 June 
1954. p. 2:8. 

10. Dreicr, p. 57. 

11. U.S. Department of State, A Case History of Communist Penetration, Guatemala 
(Washington: U.S. Govt. Print. Off., 1957), p. 58-59. ' 

12. "United Fruit Signs Guatemala Accord," The New York Times, 28 December 1954, p. 
3:5. 

13. "President Sends Marines to Rescue Citizens of the U.S. from Dominican Fighting," The 
New York Times, 29 April 1965, p. 1 :8. 

14. "Dominican Revolt Fails after a Day of Savage Rattle," The New York Times, 28 April 
1965, p. 1:3. 

15. "Evacuation of U.S. and Other Foreign Nationals," Keesing i Contemporary Archives, 26 
Junc-3July 1965, p. 20813. 

16. "G.I.'s Advance in Santo Domingo; Johnson Sends 2,000 More Troops; U.N. Talks Set at 
Soviet Request," The New York Times, 2 May 1965, p. 1:8. 

17. "Johnson Charges Red Plotters Took Over Dominican Republic Uprising; Increases U.S. 
Forces to 14,000," The New York Times, 3 May 1965, p. 1:8. 

18. "Latin American Reactions to U.S. Military Intervention," Keesing's Contemporary 
Archives, 26 June-3 July 1965, p. 20816. 

19. Connell-Smith, p. 82. 

20. On 3 July 1965 the Inter-American Peace Force was composed as follows: United Slates: 
10,900 troops; Brazil: 1,115 troops and the commander, Gen. H.P. Alvim; Costa Rica: 20 
policemen; Kl Salvador: three general staff officers; Honduras: 250 troops; Nicaragua: 164 
troops; and Paraguay: 183 troops. O IS Chronicle. August 1905, p. 5. 

21. Miguel Ydigoras Fuenles, My War with Communism (Fnglewood Cliffs, N.J.: Prentice 
Hall, 1963). 

22. Dreier, p. 62. 

23. Leonard C. Meeker, "The Dominican Situation in the Perspective of International Law," 
The Department of State Bulletin, 12 July 1965, p. 60. 

24. "Q. and A. on Dominican Policy-Interview with Mann," The New York Times, 9 May 
1965, sec. IV, p. 3:1. 

25. Quincy Wright, "The Legality of Intervention under the United Nations Charter," 
American Society of International Law, Proceedings, / 957 (Washington: 1958), p. 86. 

26. Richard B. Lillich, "Forcible Self-Help by States to Protect Human Rights," Iowa Law 
Review, October 1967, p. 333. 



33 

27. Michael K. CTLeary, "The Nature of the Inter-American System," Robert W. Gregg, ed., 
International Organization in the Western Hemisphere (Syracuse, N.Y.: Syracuse University Press, 
1968), p. 168. 

IV-INTERVENTION: WHEN AND HOW 

1. Brierly, p. 402. 

2. Brownlie, p. 289. 

3. Sir Gerald G. Fitzmaurice, "The General Principles of International Law," The Hague, 
Academy of International Law, Recueil des Cours, 7 957(Leyden: Sijthoff, 1958), v. XL1I, p. 
172. 

4. Lillich, p. 327. 

5. Ann V. Thomas and Aaron J. Thomas, Non-intervention: the Law and Its Import in the 
Americas (Dallas: Southern Methodist University Press, 1956), p. 332. 

6. Ann V. Thomas and Aaron J. Thomas, "The Dominican Republic Crisis, 1965," The 
Hammarskjold Forum, 9th, 1966 (Dobbs Ferry, N.Y.: Oceana, 1967), p. 13. 

7. Ibid., p. 13. 

8. See Brierly, p. 416-432, for a full discussion of the controversial scope of the right of 
self-defense. 

9. Daniel Webster, quoted in Brownlie, p. 43. 

10. Claud H. M. Waldock, "The Regulation of the Use of Force by Individual States in 
International Law," The Hague Academy of International Law, Recueil des Cours, 7952 (Paris: 
Librairie du Recueil Sirey, 1953), v. LXXXI, p. 167. 

1 1. Thomas and Thomas, "The Dominican Republic Crisis, 1965," p. 56. 
VI. Ibid., p. 19. 

13./6iU, p. 20. 

14. Lassa F.L. Oppenheim, International Law, a Treatise, 8th ed. (London: Longmans, 
Green, 1955). p. 312. 

15. Lillich, p. 333. 

16. Manfred Hal pern, "The Morality and Polities of Inlervenlion," Richard A. Falk, ed., The 
Vietnam War and International Imw (Princeton: Princeton University Press, 1968), p. 39. 

17. Roger Fisher, "Intervention: Three Problems of Policy and Law," Falk, ed., p. 137. 

18. Doris A. Graber, "United Stales Inlervenlion in Latin America," The Year Hook of 
World Affairs, 1 962 (New York: Praeger, 1962), p. 33. 

19. Charter of the Organization of American States. Article 5. The American States reaffirm 
the following principles: 

(a) International law is the standard of conduct of Slates in their reciprocal relations; (j) The 
American States proclaim the fundamental rights of the individual without distinction as to race, 
nationality, creed or sex. 

20. Dreicr, p. 132. 

21. Dean G. Acheson, "The Cuban Quarantine: Remarks," American Society of Interna- 
tional Law, Proceedings, 1963 (Washington: 1963), p. 15. 

22. John B. Martin, Overtaken by Events (Garden City, N.Y.: Doubleday, 1966), p. 706. 

23. Lyndon B. Johnson, 'ALS. Moves in the Conflict in the Dominican Republic," The New 
York Times, 3 May 1965, p. 10:4. 

24. Wolfgang G. Friedmann, "United States Policy and the Crisis of International Law," The 
American Journal of International l^aw, October 1965, p. 867-868. 

25. Leonard Meeker, "Vict-Nam and the International Law of Self-Defense, " Falk, ed., p. 
324. 

26. Halpern. p. 40. 

V-ANALYSIS AND CONCLUSIONS 

1. Mr. N.T. Fedorenko, Soviet representative in the Security Council of the United Nations, 
quoted the Wall Street Journal as saying that the U.S. companies "have a slake in the Dominican 

Republic," implying thai this may have been Ihc real reason for the inlervenlion there in 1965. 
U.S. capital in the Dominican Republic amounted to about $350 million at the lime of the 
landing of troops. F. Parkinson, "Santo Domingo and After," The Year Hook of World Affairs, 
I960 (New York: Praeger, 1966), p. 144-145. Considering the concern of Ihe United Stales in 
Guatemala in 1951 and Ihe $900 million lost in Cuba, this view was undoubtedly shared by 
others besides Mr. Fedorenko. 

2. "U.S. and Latins," The New York Times, 21 November 1965, p. 1 E:7. 



34 

3. "Johnson Pledges U.S. Aid to Latins Will Co into 70V The New York Times, 23 
November l ( )() r >. p. 1:1. 

4. John N. Plank, "The Caribbean: Intervention, When and How," Foreign Affairs, October 
1965, p. 37-48. 

5. U.S. Naval War College, International Law Studies / 96.7, by Neill H. Alford, Jr. 

(Washington: U.S. (iovt. Print. Off., J%7), p. L89. 



35 



DEFINING AGGRESSION-UNITED STATES POLICY 



Rodney V. Hansen 



INTRODUCTION 

The purpose of this paper is to 
analyze the position of the United 
States in opposing the adoption by the 
United Nations of a definition of aggres- 
sion. 

Several related faetors are considered 
germane to a discussion of the problem 
as it is stated. First, the position of the 
United States regarding the criminality 
of aggressive war is examined in order 
that the moral position of the United 
States can be determined. It is not 
considered within the scope of this 
treatment to address the question of I lie 
legality of aggressive war, but merely to 

consider the policy espoused by the 
United Slates on the subject. 

In an attempt to provide an overview 
of the multitudinous definitions extant 
in the world community, a short resume 
of the early definitions is presented 
together with representative examples 
of the two major types of definition. No 
attempt is made to deal extensively with 
the vagaries of the many definitions 
promoted by the individual nations of 
the world. 

The Soviet definition presents the 
greatest departure from the norms of 
current practice in the United Nations 
and appears to be currently favored by a 
rather large percentage of the United 
Nations membership. In order to appre- 
ciate the potential effect upon U.S. 
policies, past and present, the substance 
of the definition is considered in juxta- 
position to both the general nature of 



U.S. foreign policy actions and to 
specific examples of past episodes in- 
volving the international use of force by 
the United States. 

Finally, an attempt is made to illus- 
trate how the application of the ele- 
ments of the Soviet definition in cases 
of suspected aggression may operate 
against the interests of the United States 
within the United Nations. 

I--AN OLD ISSUE REVISITED 

The Soviet Resolution. In December 
1967 the 22d United Nations General 
Assembly considered a resolution, sub- 
mitted by the Soviet Union, which again 
placed the question of defining aggres- 
sion before the United Nations: 

Convinced that a primary problem 
confronting the United Nations in the 
maintenance of international peace re- 
mains the strengthening of the will of 
States to respect all obligations under 
the Charter, 

Considering that there is a widespread 
conviction that a definition of aggres- 
sion would have considerable impor- 
tance for the maintenance of interna- 
tional peace and for the adoption of 
effective measures under the Charter 
for preventing acts of aggression. 
Noting that there is still no generally 
recognized definition of aggression, 

1. Recognizes that there is a wide- 
spread conviction of the need to ex- 
pedite the definition of aggression; 

2. Establishes a Special Committee 
on the Question of Defining Aggres- 
sion, composed of tlurty-fivc Member 
States to be appointed by the President 
of the General Assembly, taking into 
consideration the principles of equit- 
able geographical representation and 



36 



the necessity that the principal legal 
systems of the world should be repre- 
sented; 

4. Requests the Secretary-General 

to provide the Speci.il Committee with 

the necessary Facilities ami services; 

">. Decides to include in the pro- 
visional agenda of its twenty-third ses- 
sion the item entitled "Report of the 
Speeial Committee on the Question of 
Defining Aggression."! 

A letter from the Minister for For- 
eign Affairs of the U.S.S.K. had pro- 
posed inclusion of the resolution on the 
agenda. This letter contained a series of 
statements that smacked of the usual 
Soviet propaganda, but to many nations 
of the world community the proposals 
seemed to reflect an accurate exposition 
of the problems weighing upon the 
conscience of the "law-abiding" nation- 
states. The Soviets proclaimed "... of 
late, there have been increasing in- 
stances of the use of armed force to 
commit acts of aggression against sover- 
eign States and to crush peoples strug- 
gling against colonialism and for free- 
dom and independence. " The Russians 
continued by stating that acts of aggres- 
sion were undermining peace and 
security and increasing the danger of the 
outbreak of a new world conflict. 'Tn 
conjunction with the vigorous condem- 
nation of aggression and the adoption of 
measures preventing it, the formulation 
of a definition of aggression could, 
particularly in the present international 
situation, make an important contribu- 
tion to the cause of peace." The pro- 
posed definition would be "a stern 
reminder to the forces of aggression and 
war that they bear responsibility for 
violating international peace. 1 - 

In the debate that followed, the 
Soviet delegate noted with regret that in 
previous United Nations sessions the 
adoption of the Soviet draft definition 
of aggression had been blocked by the 
United States and added, "Had there 
been a universally recognized definition 
of aggression, the American interven- 
tionists would find it far more difficult 



to mask their crimes in Viet Nam 
since Vietnam was in no position to 
pose a threat to the security of the 
United Stales. The Soviet representative 
pointed out that his country had been a 
champion of a clear-cut definition of 
aggression since the Dumbarton Oaks 
Conference. Several countries, he con- 
tinued, had thwarted the good inten- 
tions of the Soviet Union in order to 
further their own selfish interests of 
intervention in the affairs of other 
countries and trying to suppress the 
peoples wars of liberation. ^ 

A total of 28 nations entered the 
subsequent debate on the subject. The 
Soviet satellites added their usual itera- 
tion of the party line, but, in addition, 
many other delegates to the assembly 
spoke out in favor of the Soviet resolu- 
tion. A brief summary of some aspects 
of the debate illustrating typical argu- 
ments is presented below. 

Africa. Algeria argued that it was 
essential to define the general principles 
of the Charter more closely and added 
that international tension had been 
artificially created to block the advance 
of colonial peoples to independence. 
This situation had led to major conflicts 
such as in the Dominican Republic, 
Vietnam, and the Middle East. Any 
policy which rewarded the aggressor, 
according to the Algerian delegate, 
would spell the suicide of the United 
Nations. The Algerian argument ended 
by pointing out that the definition of 
aggression would complete the listing of 
principles of international law dealing 
with and sjoverninjj friendly relations 
and cooperation.'* 

The Democratic Republic of the 
Congo also favored definition, but they 
felt that any attempt would be inade- 
quate unless it included prohibition of 
forms of aggression such as propaganda 
and assistance to armed rebel bands 
operating against another State, as well 
as pressure on the State and passive or 
active assistance to armed rebel bands 



37 



operating against the political or eco- 
nomic institutions of the State or 
against ils natural resources.* 1 ' The 
Soviet definition, discussed in Chapter 
111. provides criteria referred to by the 
Congolese delegation. 

Liberia, too, favored a definition, 
even though past efforts had proved 

fruitless. The delegate added that since 
the last attempt was made, in 1957, the 
membership of the United Nations had 
increased appreciably and should pro- 
vide a belter environment for defining 
aggression/ 1 

The Middle East. The representative 
of Iran argued for the definition and 
enumerated two principles that had 
prompted the earlier quests for defini- 
tion: first, to universalize the principles 
of the Nuremberg trials; and second, to 
strengthen the basis of judgment em- 
ployed by the organization for the 
maintenance and restoration of interna- 
tional peace and security. He continued 
by noting that although the search for 
definition had lain dormant for several 
years, the (General Assembly and 
Security Council had both entered upon 
paths which were more likely to lead to 
an acceptable and feasible definition. 7 
The Iraqi delegation adopted a policy of 
wholehearted endorsement of the Soviet 
resolution which could provide a key to 
preventing the erosion and collapse of 
international order, if it might lead to 
an acceptable and precise definition of 
aggression. The Syrian Arab Republic 
voiced similar sentiments, adding that 
arguments against the proposal were a 
reflection of the desire of certain 
powers to safeguard their selfish inter- 
ests and to ensure that force would 
prevail over law.** 

The representative of Afghanistan 
said that a definition would help the 
Security Council in its deliberations. 

Asia. India welcomed the initiative of 
the Soviet Union in bringing the matter 
before the United Nations, pointing out 
that collective security was vital to the 



smaller nations, and everything possible 
must be done to strengthen the system. 
The definition of aggression would be, 
according to the Indian delegate, a 
worthwhile step in that direction. The 
Indians fell that the reason tin* l ( ). r >7 
definition was not adopted was to pro- 
vide the many new members of the 
organization an opportunity to consider 
the matter and offer their views. The 
time had now come for resuming work 
on a definition of aggression. 9 

Cambodia presented an argument 
similar to that of India, but noted that 
the lack of a definition enabled the 
United States to perpetrate crimes all 
over the world against those who dared 
to reject its domination.) The Philip- 
pines favored adoption of an objective 
definition and urged the Assembly to 
move ahead with the task. Thailand 
indicated that a definition would be 
beneficial but doubled that the time 
was right for an attempt, and China also 
spoke out against definition. 

Western Hemisphere. The represen- 
tative of Mexico said his government 
had always held that a definition of 
aggression was legally and technically 
feasible, and the result would be useful 
and appropriate. The delegation an- 
nounced that a definite decision on the 
question could be laken up at the 24th 
Session. 1 1 Cuba echoed the Soviet con- 
tention that a definition was being 
blocked by states engaged in aggression 
and who were not interested in anything 
which might contribute to its condem- 
nation. 

The United States Stands Alone. The 

U.S. representative argued that since his 
delegation surmised that the Soviet item 
was pure propaganda, he had opposed 
the proposal. The delegate then pointed 
out that our involvement in Vietnam 
was in the role of a defender against 
aggression and that the United Stales 
had proposed that the matter be de- 
bated in the Security Council. In con- 
trast to its stated benevolent concern 



38 



for world order, the U.S.S.K. had em- 

barkcd on a program of aggression 
eommencini! in \ l )lV.\ with the incor- 

rn 

poralion ol Estonia, Lithuania, and 
Latvia into the Soviet Union. This was 
followed h\ the subversion of Cy.ceho- 

Slovakia in MJ 18. the aiding and abetting 
ol the Korean invasion of 1950, and the 
suppression of a free government of 
Hungary in 195 6. All of ihcsc aggressive 
actions were perpetrated by a nation 
which had since 1933 favored an inter- 
national definition of aggression. The 
United Slates closed its argument by 
stating that it would he glad to discuss 
the Soviet proposal in the proper forum, 
which was not the General Assembly, 
but in the Sixth Committee. 

Considering the entire debate, a total 
of 22 nations spoke out in favor of the 
Soviet proposal to pursue the quest for 
defining aggression and were generally 
in favor of the Soviet draft definition. 
Of those who entered the debate, an 
additional eight favored definition but 
preferred a broader abstract definition, 
and one preferred a more comprehen- 
sive version of the Russian proposal. A 
total of only six nations, the United 
Slates, United Kingdom, China, Nor- 
way, Canada, and Australia spoke out 
against definition. 

In the General Assembly vote on the 
Soviet proposal an overwhelming ma- 
jority of ( H) nations voted for the 
resolution-- 18 abstained from voting- 
and a single nation, the United States, 
voted against adoption of the measure. 

The implications of this vole, al- 
though dramatic, do not necessarily 
suggest that the United Slates is unequi- 
vocally opposed to discussions of the 
definition of aggression, but emphasize 
the fact that the U.S. policy has gener- 
ally been orienled against the Soviet 
policy of pressing for a definition of 
aggression. 

This latest incident in the General 
Assembly does serve to revivify the 

continuing clash of Soviet and United 



Stales interests in the political and legal 
aspects ol defining aggression and again 
opens the question of whether the U.S. 
polit*) , in llie context of lite current 

world situation, is valid in opposing, 
almost singlchandedlv. the proposed 
Soviet definition of agression. 

H--CRIMINAL1TY OF 

AGGRESSIVE WAIi- 
TIIE UNITED STATES POLICY 

In addressing the question of for- 
mally defining aggression in the context 
of the larger foreign policy of the 
United States, it is first necessary to 
examine the question of aggressive war 
and the U.S. policy on that subject. In 
general, United Nations actions arc 
recommendatory in nature and not 
binding on the parties involved. This is 
particularly true in the case of perma- 
nent members of the Security Council, 
since the only action that could be 
taken against them, assuming the use of 
the veto power, would be by the 
General Assembly under the Uniting for 
Peace Resolution: 

[The United Nations] provides for the 
organization of collective force to frus- 
trate aggression whenever the great 
powers are unanimously disposed to 
support such action; but it docs not 
create an enforcement mechanism 
capable of being used to control great 
powers or states backed by great 
powers.^ 

Even though sanctions could not be 
forced on the United States by the 
Assembly, the U.S. Government has 
consistently maintained the position, al 
least on the surface, that it must be 
"morally" correct in international deal- 
ings. As the principal driving force in 
the founding and nurturing of the 
organization, the United Stales must 
maintain an appearance of allegiance to 
the principles and goals of its Charter. 
Secretary of Slate Husk defined our 
concepts of l).^. policy in the United 
Nations by stating that our goals, in 
part, were "Security through Strength: 



39 



to deter or defeat aggression at any 
level, whether of nuclear attack or 
limited war or subversion and guerilla 
tactics," and "Community under Law: 
to assist in the gradual emergence of a 
genuine world community, based on 
cooperation and law . . . "- 

President Johnson enunciated the 
official view of the United States when 
he staled, "We support the United 
Nations as the best instrument yet 
devised to promote the peace of the 
world ..."** 

Since the United States is firmly 
committed to upholding the purposes of 
the United Nations, a definition of 
aggression could have serious implica- 
tions in the conduct of its foreign policy 
if, in fact, the United States has estab- 
lished a firm policy on the outlawing of 
wars of aggression. Although many indi- 
vidual statements of Government of- 
ficials have alluded to a denunciation of 
aggressive war, a brief examination of 
the background and chronology of 
events germane to the matter will estab- 
lish a more definite determination of 
U.S. policy. The criminality of aggres- 
sive war is a subject of continuing 
discussion by the world legal com- 
munity, and the legal aspects of a 
definition are not within the scope of 
this treatment. The subject can be 
approached, however, from a discussion 
of the record of the United States in 
matters involving aggressive war and as 
evidenced by policy pronouncements. 

Prior to the 20th century, the United 
States maintained a relatively dormant 
posture on the consideration of the 
criminality of aggressive war. The lack 
ol early interest was not founded on a 
lack of experience in warfare. As 
pointed out by Ouincy Wright, "The 
United States, which has, perhaps some- 
what unjustifiably, prided itself on its 
peacefulness, has had only twenty years 
during its entire history when its army 
or navy has not been in active operation 
during some days, somewhere." 4 



Perhaps the first steps in the manifes- 
tation of official U.S. policy on the 
subject were the Hague Conventions of 
1899 and 1907 and the Geneva Conven- 
tions of 1929. These conventions made 
no attempts at delimitation of the legal 
aspects of war itself. Hut the nations did 
agree "before an appeal to arms ... to 
have recourse, as far as circumstances 
allow, to the good offices or mediation 
of one or more friendly powers. "5 The 
humanitarian principles set forth in the 
treaties were definite first steps toward 
the eventual prohibition of aggressive 
war as an element of U.S. policy. 

In 1928 the United States made two 
significant moves toward the denuncia- 
tion of aggressive war. In February a 
resolution of 21 American Republics, 
including the United States, resolved at 
the Sixth (Havana) Pan-American Con- 
ference that ' . . . war of aggression 
constitutes an international crime 
against the human species."" More im- 
portantly, the Pact of Paris, better 
known as the Kellogg-Hriand Pact, 
signed on 27 August 1928 by the 
United States, Great Britain, Germany, 
France, Japan, Italy, Poland, Belgium, 
and later by a total of 03 nations, 
provided a seemingly definitive concrete 
condemnation of war and called upon 
all parties to "renounce it as an instru- 
ment of national policy in their rela- 
tions to one another."? 

Henry L. Stimson, U.S. Secretary of 
State and an internationally respected 
lawyer, in 1932 enunciated the Ameri- 
can interpretation of the Kellogg-Hriand 

Pact: 

War between nations was renounced 
by the signatories of the Hriand- 
Kellogg Treaty. This means that it has 
become illegal throughout practically 
the entire world. It is no longer to be 
the source and subject of rights. It is 
no longer to be the principle around 
which the duties, the conduct, and the 
rights of nations revolve. It is an illegal 
thing. Hereafter when two nations en- 
gage in armed conflict either one or 
both of them must be wrong-docrs-- 
violators of this general treaty law. We 



40 



no longer draw a circle about them and 
treat them with the punctilios of the 

duelist s code. Instead, we denounce 
them as law-breakers. By that very aet, 
we have made obsolete many legal 
precedents and have" pi ven the legal 
profession the task of reexamining 
many of its codes and treaties." 

The legislative branch of the United 
Stales liu<l previously committed itself 

to the outlawry ol war when on 12 
December l ( )27 the Senate adopted a 
resolution introduced by Senator Wil- 
liam E. Borah which contained the 
dictum, "that is the view of the Senate 
of the United States that war between 
nations should be outlawed as an insti- 
tution or means of settlement of inter- 
national controversies by making it a 
public crime under the law of na- 
tions. ,H * 

The interpretation of Secretary Stim- 
son and Senator Borah was by no means 
universal. The world legal community 
did not unanimously consider the pact 
as an international criminal code. Mr. 
Kellogg implies that the treaty bearing 
his name gives the nations involved the 
right to determine their own guilt or 
innocence in matters involving a viola- 
tion of the treaty: "Every nation is free 
at all times and regardless of treaty 
provisions to defend its territory from 
attack or invasion, and it alone is 
competent to decide whether circum- 
stances require recourse to war in self- 
defense. 'TO 

The general disagreement over the 
viability of the pact as a source of law 
centered on the lack of sanctions in the 
system to deal with violators of the 
pact. The sanction of world opinion was 
not considered adequate in giving the 
pact the characteristics requisite of a 
substantive element of the law of na- 
tions. Lauterpacht held that ; This 
'epoch-making' document [the Kellogg- 
Briand Pact] thus could not really be of 
any legal significance for the future 
validity of the law of neutrality: there 
were not even any technical difficulties 
arising from it in this connection."' 1 



The International Law Association, 
in recognition of the divergent opinions 
of international legal scholars and, in 
particular, the concern of the United 
Stales over the lack of definitive en- 
forcement measures intrinsic to the 
pact, adopted a series of resolutions at 
its conference in Budapest on 10 Sep- 
tember 1931. These resolutions are 
known as the "Budapest Articles of 
Interpretation. 1 ' They read in part: 

(2) A signatory State which threat- 
ens to resort to armed force for the 
solution of an international dispute or 
conflict is guilty of a violation of the 
Pact. 

(4) In the event of a violation of the 
Pact by a resort to armed force or war 
by one signatory State against another, 
the other States may, without thereby 
committing a breach of the Pact or of 
any rule of International Law, do all or 
any of the following things: -- 

(a) Refuse to admit the exercise by 
the State violating the pact of bellig- 
erent rights, such as visit and search, 
blockade, etc. 

(b) Decline to observe towards the 
State violating the pact the duties 
prescribed by International Law, apart 
from the pact, for a neutral in relation 
to a belUgercnt; 

(c) Supply the State attacked with 
financial or material assistance, includ- 
ing munitions of war; 

(d) Assist with armed forces the 
State attacked.! ^ 

These interpretations tended to solidii'y 
the substance of the pact and enforced 
the U.S. policy proscribing international 
use of force. 

Prior to the advent of World War II, 
the policy of the United States regard- 
ing the criminality of war was well 
established, and the legal content of the 
policy was extended to the addressing 
of the legal ramifications of aid to 
victims of aggression. Naturally, the 
United States adopted the philosophy 
that since wars of aggression were repug- 
nant to the international community, 
aid to the victims was a logical reaction 
of the government. The general policy 
as stated by Robert II. Jackson, then 



41 



Attorney General of the United States, 
was: 

Present aggressive wars arc civil wars 
against the international community. 
Accordingly, as responsible members 
of that community, we can treat vic- 
tims of aggression in the same way we 
treat legitimate governments when 
there is civil strife and a state of 
insurgency-that is to say, we are per- 
mitted to give to defending govern- 
ments all the aid we choose. 13 

Mr. Stimson, Secretary of War at that 
time, testifying before the House Com- 
mittee on Foreign Affairs with respect 
to the proposed lend-lease bill, pointed 
out that the United States was primarily 
responsible for the increasing recogni- 
tion of the criminality of aggressive war, 
but added that "... It has not been 
recognized ... by these Houses of Con- 
gress here that were the parents of it, 
what a vital change was made in the 
system of international law by that 
action.''' The significance of the U.S. 
leadership against aggressive war was not 
largely appreciated by Congress or the 
public. 14 

World War 11 and its widespread 
destruction gave renewed impetus to the 
need for a true international world legal 
system with potent international organi- 
zation to maintain the force of law over 
the law of force. The loss of life from all 
sources during World War II was esti- 
mated to be over 60 million. 1 5 Cer- 
tainly the advent of nuclear weapons 
assured a potential population destruc- 
tion increase of at least an order of 
magnitude in the "next" general war. 

The legal aftermath of the Second 
World War was initiated by the prece- 
dent-setting Nuremberg trials. It should 
be noted, however, that the punishment 
of defeated leaders was not "illegal" or 
without precedent. In 405 B.C. the 
Lacedaemonian Admiral Lysander, after 
the destruction of the Athenian Fleet, 
called his allies together to determine 
the fate of his prisoners. The council of 
allies was similar to a court which heard 
witnesses and examined the evidence 



before arriving at a judgment and sen- 
tence. All prisoners, except one, were 
sentenced to death. 

The precedent of the Nuremberg 
trials was the attempt to establish a 
substantive rule ol law, making aggres- 
sive war a crime for which individuals 
could be held accountable and pun- 
ished. This had the effect of establishing 
in world opinion the principle that 
justice and law had triumphed over the 
law of force. The promise of Winston 
Churchill, made on 8 September 1942, 
was destined to be consummated by the 
Nuremberg trials: 

. . . Those who are guilty of Nazi 
crimes will have to stand up before 
tribunals in every land where the 
atrocities have been committed, in 
order that an indelible warning may be 
given to future ages and that successive 
generations of men may say, "So 
perish all who do the like again. "1° 
[Emphasis supplied! 

The Nuremberg tribunal and its char- 
ter provided the United States with an 
impressive step forward in its quest to 
codify the criminality of war. The 
United States chose as its chief represen- 
tative Robert II. Jackson, Associate 
Justice of the Supreme Court and for- 
mer Attorney General, who had long 
been a proponent of increased emphasis 
on codification of the criminal aspects 
of war. In an address to the Inter- 
American Bar Association at Havana on 
27 March 1947, Mr. Jackson as At- 
torney General said: 

... No longer can it be argued that the 
civilized world must behave with rigid 
impartiality toward both an aggressor 
in violation of the treaty and the 
victims of unprovoked attack. We need 
not now be indifferent as between the 
worse and the better cause, nor deal 
with the just and the unjust alike. 17 

Mr. Jackson had rather broad official 
guidelines for his task as U.S. Represen- 
tative to the International Conference 
on Military Trials which commenced in 
June 1945. The guidelines included (1) 
The Moscow Declaration, which formed 



42 



the immediate basis for the establish- 
ment of the International Military 
Tribunal, and the charter. This declara- 
tion established the general guidelines 

for the trials and made provisions to try 
major war criminals, not in national 
court.-, but by "joint decision" of allied 
govern me nls; and (2) the Yalta Memo- 
randum, addressed lo the President of 
the United States, which established 
U.S. overall policies and guidelines in 
the conduct of war crimes trials. It 
included delineation of the crime to be 
considered by the tribunal and provided 
a base date of 1933 as the beginning of 
German criminal actions. The memoran- 
dum also included guidelines for select- 
ing and identifying those to be punished 
and the difficulties that might be en- 
countered in identification. The docu- 
ment ended with a recommended pro- 
gram for trying the criminals. Of par- 
ticular importance is the emphasis on 
the aspect of making an authentic 
record of German crimes. 

In the proceedings of the conference 
the U.S. representative adopted a singu- 
lar policy: to make the charter of the 
International Military Tribunal and the 
proceedings of the trials themselves 
stand as a massive framework for the 
development and codification of sub- 
stantive international criminal law. The 
Kussian delegate, (Jen. I.T. Nikitchenko, 
adopted the philosophy that trials were 
of a purely ephemeral nature, designed 
to inflict summary punishment on the 
beaten Nazis. In the deliberations on the 
language of the charter, Nikitchenko 
made the following pronouncement re- 
garding the [].S. proposal for the defini- 
tion of war criminals: "In my opinion 
we should not try lo draw up this 
definition for the future . . . "18 

His general opinion regarding the 
legal substance of the charter, so impor- 
tant to Justice Jackson, is indicated in 
this statement of the Kussian: 'The fact 
that the Nazi leaders are criminals has 
already been established. The task of 
the Tribunal is only lo determine the 



measure of guilt of each particular 
person and mete out the necessary 
punishment— the sentences. "1 ^ 

Professor \.N. Train in, of the Soviet 
delegation, also believed that the con- 
sideration ol the conference should be 
limited to the task at hand and not be 
concerned with providing future guid- 
ance lor international lawyers: There 
might come a time when there will be a 
permanent international tribunal of the 
United Nations organization, but this 
tribunal has a definite purpose in view, 
that is, to try criminals of the European 
Axis powers . . . ,,2() 

The French delegation, headed by 
Judge Robert Falco, generally adopted a 
policy of not accepting the principle of 
law that aggressive war constituted a 
defined criminal action. Professor Andre 
Gros, the assistant representative of 
France, set forth the basis of the French 
position when he said, "We do not 
consider as a criminal violation the 
launching of a war of aggression." 2 ! In 
contrast to the United States, the 
Frenchmen did not desire to be associ- 
ated with an attempt to formulate 
international law. The French represen- 
tative pointed* out that "We are not 
declaring a new principle of interna- 
tional law. We are just declaring we are 
going to punish those responsible for 
criminal acts. "2 2 

The British representative, Sir David 
Maxwell Fyfe, succinctly stated the 
position of his government in this state- 
ment, 

The question comes to tins: wheth- 
er it is right or desirable to accept the 
position that a war of aggression is a 
crime. It seems to be agreed that it is. 
The fundamental difficulty is the lack 
of sanction. More strictly it may be 
said that it is accepted as a crime 
without declared punishment or any 
declared sanction against it.- J 

This position was essentially parallel to 
that of the United States, and this 
parallelism was generally observed 
throughout the whole of the delibera- 
tions. 



43 



Mr. Justice Jackson, during the form- 
ing of the charter, maintained His insis- 
tence that the results of their efforts 
would fulfill the dual role of establish- 
ing the guilt and setting the punishment 
of the Nazi hierarchy and of providing 
future legalists with a carefully prepared 
source of law reflecting the policy of 
tin; United States, lie further empha- 
sized the orientation of the United 
States by noting, "Our attitude as a 
nation, in a number of transactions, was 
based on the proposition that this [war] 
was an illegal war from the moment that 
it was started . . . "24 

In his report to President Truman, 
Justice Jackson summarized his position 
concerning the development of law 
using the charter as a vehicle for estab- 
lishing the criminality of aggressive war: 

This Pact constitutes only one in a 
scries of acts which have reversed the 
viewpoint that all war is legaJ and have 
brought International Law into har- 
mony with the common sense of man- 
kind, that unjustifiable war is a 
crime . . . Any legal position asserted 
on behalf of the United States will 
have considerable significance in the 

future evolution of International 
Law.25 

The United States, a major partici- 
pant in the drafting of the United 
Nations Charter, continued its position 
as a salient force in the quest for 
estabbshing a legal basis for the out- 
lawing of aggressive war. The provisions 
of the charter very nearly approach, at 
least theoretically, the complete subju- 
gation of aggressive war to the interna- 
tional community. Signatories to the 
charter are bound to "settle their inter- 
national disputes by peaceful means" 
and to "refrain in their international 
relations from the threat of use of 
fo 



rce 



'26 



The Security Council was entrusted 
with the power to react, with the use of 
force if necessary, to "any threat to the 
peace, breach of peace or acts of aggres- 
sion. "27 



In summary, the policy of the United 
States during the 20th century has been 
one of continuing to press for recogni- 
tion of the initiation of wars of aggres- 
sion as an international crime. Our 
position was particularly strong during 
the deliberations for the development of 
the charter for the International Mili- 
tary Tribunal, even though other partici- 
pants in the negotiations- Russia and 
France-adopted a philosophy that the 
universal denunciation of aggressive war 
as an international crime was not in 
consonance with the "facts of life" 
extant in the world political commu- 
nity. 

III-DEFINITIONS OF AGGRESSION 

In Chapter II the policy of the 
United States regarding the illegality of 
aggressive war was surveyed, disclosing a 
continuing effort to preclude the legal 
use of force in the cause of agression. 
The difficulties in characterizing the 
concept of aggression and in defining 
exactly who is the aggressor in a singular 
episode have paralleled the development 
of the concept of outlawing aggressive 
war. 

The paradoxical nature of the prob- 
lem can be illustrated by considering 
that in spite of apparent agreement 
among world leaders on the principle 
that aggressive war is a crime to be 
condemned by international law, the 
buildup of arms throughout the world 
has continued at an unprecedented 
pace, and an almost continuous parade 
of armed conflicts have transited the 
pages of history in recent decades. The 
imbroglio has arisen from the fact that 
the effects of agreement on the princi- 
ple have been negated by a widespread 
disagreement as to the meaning of "ag- 
gression." No definition of the term has 
ever been accepted by the policymakers 
of the international community, and 
each "side" believes the other will 
couch its aggressive overtures in terms 
of repelling the aggressive designs of the 
"other side." 



44 



It is not a case of failing to attempt 
to arrive at a universal agreement on the 
exact definition of aggression, l>ui is 

rather that the continuing process Iki> 
met with frustration because of the 
wide divergence ol opinion on the 
avenues ol approach to the final prod- 
uct. Generally speaking, the world com- 
innnily is polarized on the subject, one 
camp being the "definers,* 1 the other 
the "nondefiners." The "definers" are 
further divided within their own group, 
as will he discussed in Chapter IV. In 
the critical matter of defining agres- 
sion, the policy of the United States has 
been of an ambivalent nature, initially 
on the side of the "definers" during the 
pre -United Nations period, then leading 
the "nondefiners" in the United Nations 
deliberations. A review of the develop- 
ment of the circumstances leading to 
the current stalemate among diplomats 
and jurists must necessarily precede an 
attempt to establish the desirability of a 
definition of aggression in the context 
of the U.S. position as a world "super- 
power.' 1 

Early Views on War and Aggression. 

War and the use of force have been an 
integral part of life on this planet since 
before the appearance of man and have 
only recently been considered to lie 
violations of legal order. Animal warfare 
probably began well before the Paleo- 
zoic Era as competition between the 
cytoplasmic cells for the necessities of 
survival. As the sophistication of life 
forms rose to the higher levels of true 
animal life, so did the methods and 
techniques of warfare. The use of force 
in the animal world can generally he 
considered to arise from rivalry for 
possession of some external object, 
from intrusion of a stranger in the 
group, or from frustration of activity.' 
These basic causes of "war" among 
animals remain in the legacy of man, 
but the arrival of man and his amazing 
intellectual capacity have added to the 
causative factors leading to the use of 



violence. Primitive man generally fell 
into four degrees of inilitanc \ : 

... 1 1 J the most unwarlike peoples 
who fight only in defense; (2 J the 
tnoderalels warlike who fight for 
sport, ritual, revenge, personal prestige, 
or oilier social purpose; |.'l| the more 
warlike who fi^ht for economic pur- 
poses (raids on herds, extension of 
grazing lands, booty, slaves); and [1] 
the most warlike of all who, in addi- 
tion, fight for political purposes (ex- 
tension of empire, political prestige, 
maintenance of authority of rulers). 2 

As man became more civilized, the 
causes of war remained rather stable, 
but the techniques improved, and the 
impact of war became more universal in 
nature. In addition, war became the 
subject of intellectual exercises peculiar 
to the human race, which leads to the 
consideration of the problem of de- 
fining a«i»rressive war and formulating 

P" re r"> 

rules for the identification of the aggres- 
sor in a particular conflict. 

Early Definitions. The question of 
differentiating the "guilty" and the "in- 
nocent" parties in cases involving the 
use of international force has been 
considered by jurists of the world for 
centuries. Helli, in 1563, considered war 
illegal "unless there is need for de- 
fense. "^ Grotius, in his definition, con- 
sidered an aggressive attack one 
' . . . launched with criminal objectives, 
e.g. murder, pillage, robbery, etc. "4 

In 1650, 25 years after (.rotius enun- 
ciated bis definition, Kichard Xouche 
said of war, . . . a lawful contention, 
that is, a contention moved by legiti- 
mate authority and for a lawful 
cause. "5 He then delineated the causes 
which he considered lawful, "A lawlul 
cause is an injury which it is allowed 
both to avenge and to repel, whence a 
war is said to be either of offense, or of 
defense; as Camillus in a declaration to 
the Gauls said, 'All things which heaven 
allows us to defend, it allows us to 
reclaim and to avenge."' 

Toward the end of the 18lb century, 
Christian Wolff in his book./us (Ionium 



45 



Metliodo Scicntifica Perlractalum con- 
sidered the question of establishing a 
rule for making a distinction between a 
"just" and an "unjust" war. Me de- 
scribed ihrec basic situations, any one 
of which could provide the basis lor a 
"just" war. They were "(I) The attain- 
ment of one s own or that which ought 
to be one's own, (2) the establishing of 
security, (3) the preventing of threat- 
ened danger or the warding off of 
injury ,"7 thus providing the perennial 
"loophole" for a potential aggressor to 
wage war in the guise of "preventing 
threatened danger." Bynkershoek, a 
contemporary of Wolff, wrote that in 
his view only two causes could be 
considered grounds for labeling a war 
nonaggressive, ' . . . defense or the re- 
covery of one's own. "8 

In the same period other writers 
considered that any attempt to define 
the "aggressor" or unjust parly to a war 
was meaningless. In particular, llobbes 
said "in a war of all against all it is 
logical that nothing can be called un- 
just, "9 and Hall contended that 
' . . . both parties to every war are 
regarded as being in identical legal posi- 
tions, and consequently as being pos- 
sessed of equal rights."! The com- 
ments of Hall generally reflected the 
mien of the 19th century when war and 
aggression were generally considered to 
be outside the realm of justice and 
international law. 

Modern Definitions. Contrasted to 

the early writers, who attempted to 
define the just party in a contention 
involving force, the 20th century legal- 
ists have approached the problem of 
determining the unjust parly-or the 
"aggressor." Probably the earliest ex- 
ample of a large; group of states agreeing 
upon restrictions to war was the Con- 
vention for the Pacific Settlement of 
International Conflicts at the First 
Hague Conference of 1899, where the 
signatories agreed to attempt mediation 
measures before recourse to arms. 1 * 



League of Nations. Only one refer- 
ence to "aggression" was made in the 
Covenant of the League of Nations, in 
article 10, which provided: 

Tin* members of the Leslie undertake 
to respect and preserve as against ex- 
ternal aggression the territorial integ- 
rity and existing political independence 
of all members of the League. In case 
of any such aggression the council shall 
advise upon the means by which this 
obligation shall be fulfilled.!" 

The covenant, although calling upon 
its members to preserve the integrity of 
other members against aggression, did 
not specifically prohibit war if the 
correct "procedures" were followed. 
More specifically, war was allowed if 
certain delays, specified in article 12, 
had been observed; if the council could 
not attain unanimous agreement under 
article 15; or if the war were waged 
against an adversary who had not ac- 
cepted the unanimous recommendation 

of the council. 

Even though the League of Nations 
did not provide a blanket ban on aggres- 
sive war, member states were called 
upon to suppress aggression under the 
advice of the council. The interpretation 
of exactly what constituted the aggres- 
sion of the covenant became the subject 
of concern in the international commu- 
nity. As professor Sohn has written, 
"No civilized system of law is satisfied 
with a general prohibition of 'acts vio- 
lating the interests of other persons,' 
but tries to enumerate the prohibited 
acts [trespass, larceny, murder] and to 
define in more precise terms the aggra- 
vating and attenuating circumstances 
resulting in higher or lower punish- 
ment."!^ 

The Pact of Paris (Hriand-Kellogg 
Pact) for the Denunciation of War as an 
Instrument of Policy decisively out- 
lawed, by implication, aggressive war 
and provided additional impetus to the 
moves toward defining aggression. 

During the League's later years 
several attempts were made to formally 
define aggression, beginning with the 



H> 



Geneva Protocol iA' L925 which in its 
definition of aggression included "a 
resort t*> war in violation of the under- 
takings contained in the Covenant/ 1 A 
different and more rigorous form of a 
definition was introduced by the Soviet 
Union at the Disarmament Conference 

<>l 1933. Tins id dilution, with very 
minor variations and additions, survived 
the succeeding .{."> years with neither 
complete rejection nor adoption by the 
world com in unity. This Soviet defini- 
tion of 1933 is almost identical lo the 
one submitted to the General Assembly 
of the United Nations in 1953 and will 
not he quoted in detail at this point. It 
did, however, list five acts that would he 
considered as branding the first lo com- 
mit as an aggressor--( 1 ) Declaration of 
war against another State, (2) Invasion 
ol another Stale without a declaration 
ol war, (3) Bombardment of another 
Mate or attacking its land or sea forces, 
( 1) Landing of forces within the terri- 
tory of another Stale without permis- 
sion or if permission was granted, failing 
to withdraw on request, and (5) Naval 
blockade of another State. This early 
definition failed to include the sixth act, 
which did appear in postwar Soviet 
definitions--the support of armed bands 
organized in its own territory which 
invade the territory of another State. 

Following the listing of aggressive 
acts, a series of situations were listed 
which could not be used as an "excuse" 
for commission of the forbidden ac- 
tions. This included attempts to protect 
either capital investments or a nation's 
own citizens in backward countries. 1 4 

The League ol Nations did undertake 
the question ol defining aggression dur- 
ing the preparation of the Treaty of 
Mutual Assistance by tin; Permanent 
Advisor) Commission. The report did 
not directly address the problem of 
defining aggression but did contain re- 
marks which characterized infiltration 
and invasion as acts of aggression and 
provided guidance on "signs which be- 



token an impending aggression' 1 which 
were determined to be: 

( 1 ) ( Organization OM paper of industrial 
mobilization; 

(2) Actual organization of industrial 
mobilization; 

(3) Collection of stocks of raw ma- 
terials; 

(1) Organizing of war industries; 
(5) Preparation for military mobiliza- 
tion; 

(o) Actual military mobilization; 
(7) Hostilities. 15 

In the prewar period the United 
States was a signatory to several treaties 
which alluded to a definition of aggres- 
sion. Typical of these were the provi- 
sions of the Declaration of Principles of 
Inter-American Solidarity and Coopera- 
tion adopted at the Inter-American Con- 
ference for the Maintenance of Peace at 
Buenos Aires on 21 December 1936. In 
this declaration the following principles 
were adopted by the American Commu- 
nity of Nations: 

(a) Proscription of territorial con- 
quest and that, in consequence, no 
acquisition made through violence shall 
be recognized; 

(b) Intervention by one State in the 
internal or external affairs of another 
State is condemned; 

(c) Forcible collection of pecuniary 
debts is illegal: and 

(d) Any difference or dispute be- 
tween the American nations, whatever 
its nature or origin, shall be settled by 
the methods of conciliation, or un- 
restricted arbitration, or through 
operation of interna tional justice. 1° 

Post War Policy. The U.S. delegation 
proposed that a definition of aggression 
be included in the text of the Charter 
for the International Military Tribunals. 
This definition closely paralleled the 
Soviet 1933 version: 

An aggressor, for the purposes of 
this Article, is that state which is the 
first to commit any of the following 
actions: 

(1) Declaration of war upon another 
state; 

(2) Invasion by its armed forces, 
with or without a declaration of war, 
of the territory of another state; 



47 



(3) Attack by its land, naval, or air 
forces, with or without a declaration of 
war, on the territory, vessels, or air- 
craft of another state; 

( t) Naval blockade of the coasts or 
ports of another state; 

(5) Provision of support to anned 
bands formed in its territory which 
have invaded the territory of another 
state, or refusal, notwithstanding the 
request of the invaded state, to take in 
its own territory, all measures in its 
power to deprive those bands of all 
assistance or protection. 

No political, military, economic or 
other considerations shall serve as an 
excuse or justification for such actions; 
but exercise of the right of legitimate 
self-defense, that is to say, resistance to 
an act of aggression, or action to assist 
a state which has been subjected to 
aggression, shall not constitute a war of 
aggression. 1« 

An intriguing interlude in an interna- 
tional paradox was the insistence of the 
United States delegation on the inclu- 
sion of the Soviet definition and the 
insistence by the Russian delegation not 
to provide a definition of aggression in 
the charter of the tribunal, albeit their 



own 



Definitions in the United Nations. 

The Charter of the United Nations 
includes such terms as "threats to the 
peace," "breach of the peace," and "act 
of aggression," but does not attempt to 
further define or amplify these ambigu- 
ous and comprehensive terms. This was 
not an oversight, but the result of a 
deliberate action by the drafters, in 
spite of intensive pressure to define 
aggression. The primary proponent of 
this move to include a definition in the 
charter was Bolivia. This delegation sub- 
mitted a proposal which would have 
required the Security Council to apply 
sanctions "immediately by collective 
action" when it found a state to be an 
aggressor in accordance with the follow- 
ing terms: 

A state shall be designated an ag- 
gressor if it has committed any of the 
following acts to the detriment of 
another state; 



(a) Invasion of another state's terri- 
tory by armed forces. 

(b) Declaration of war. 

(c) Attack by land, sea or air forces, 
with or without declaration of war. 

(d) Support given to armed bands 
for the purpose of invasion. 

(e) Intervention in another stale's 
internal foreign affairs. 

(f) Refusal to submit the matter 
which has caused a dispute to the 
peaceful means provided for its settle- 
ment. 

(g) Refusal to comply with a judi- 
cial decision lawfully pronounced by 
an international court. *" 

Similar amendments were submitted 
by Czechoslovakia and the Philippines. 

The Bolivian proposal was supported 
by Colombia, Guatemala, Honduras, 
Mexico, Uruguay, l^gypt, Iran, New 
Zealand, and the Philippines. All per- 
manent members of the Council, except 
China, were opposed to the proposal 
and were supported by Czechoslovakia, 
the Netherlands, Norway, South Africa, 
White Russia, Chile, and Paraguay.! 9 
The general argument against the pro- 
posal was that while a definition of 
aggression was complex and difficult, 
"recognition of an act after it had been 
committed would be simple. "20 

The final debate on the subject 
ended when a clear majority of the 
committee decided that a definition 
' . . . went beyond the possibilities of 
this conference and the purpose of the 
Charter." The original text was retained, 
sans definition, and the Council was lei I 
with "the entire decision as to what 
constitutes a threat to peace, a breach 
of peace or an act of aggression. "2! 

The question of defining aggression 
lay dormant in the United Nations for 
several years, primarily since the "super- 
powers" both had opposed the inclusion 
of a definition in the charter. The break 
in the definitional silence occurred in 
1950 following the paralysis of the 
Security Council and the subsequent 
"Uniting for Peace" resolution. Since 
the Assembly had no power to compel 
measures against a convicted aggressor, 



48 



but depended upon i In* consent <>l the 
I nilcd Nations membership, an easily 
applied, clear-out definition of aggres- 
sion was considered h\ some ol 1 1 1 «* 
members lo be iicccssiin to assure 
tmanimit) in the Assembly decisions. 
I'lic Soviet Union revitalized the subject 
ol definition l>\ submilliug ibe sub- 
stance of its draft definition of I93«'i for 
consideration by the International Law 
I ommission.22 

The Assembly, responsive lo the 
widening demand for a formal approach 
to the problem of definition, appointed 
a special committee of 115 members on 
the "Question of Defining Aggression" 
and instructed the committee to pro- 
duce "draft definitions or draft state- 
ments of I lie notion of aggression."^ 

The report of this committee estab- 
lished the existence of two basic ap- 
proaches among those who favored defi- 
nition-the "general' 1 definition and the 
"enumcrative" definition. 

The Soviet draft of the enumerative 
definition is practically identical to the 
1933 version espoused by the United 
States in 1945 during the 1MT Charter 
negotiations. The Soviet delegate, not- 
ing that aggressors perennially utilized 
the concept of "preventive war" or "self 
defense" as an excuse, proposed a listing 
of examples of direct aggression: 

The State which first commits one 
of the following acts: 

(a) Declaration of war against an- 
other State; 

(b) Invasion by its armed forces, 
even without a declaration of war, of 
the territory of another State; 

(e) bombardment by its land, sea, 
or air forces of the territory of another 
Slate or the carrying out of a deliber- 
ate attack on the ships or aircraft of 
the latter; 

(d)The landing or leading of its 
land, sea or air forces inside the boun- 
daries of another State without the 
permission of the government of the 
latter, or the violation of the condi- 
tions of such permission, particulary as 
regards the length of their stay or the 
extent of the area in which they may 
stay: 



(e) Naval blockade of the coasts or 
ports of another State; 

(f) Support of armed bands or- 
ganized in ils own territory which 
invade the territory of another Stale, 
or refusal, on being requested by the 
invaded Slate, to take in its own 
territory any action within its power to 

deny such bands any aid or protee- 

' 2 1 

tion.- ■ 

The Soviets then list a series of 
episodes which are considered to be 

forms of indirect aggression which 
would condemn a state which first: 

(a) Encourages subversive activity 
against another State (acts of terror- 
ism, diversion, etc.): 

(b) Promotes the outbreak of civil 
war within another State: 

(c) Promotes an internal upheaval in 
another State or a reversal of policy in 
favor of the aggressor.*-^ 

Economic aggression included the fol- 
lowing acts: 

(a) Takes against another State 
measures of economic pressure vio- 
lating its sovereignty and economic 
independence and threatening the basis 
of its economic life; 

(b) Takes against another State 
measures preventing it from exploiting 
or nationalizing its own natural riches: 

(c) Subjects another State to an 
economic blockade. 2° 

and ideological aggression: 

(a) Encourages war propaganda; 

(b) Encourages propaganda in favor 
of using atomic, bacterial, chemical 
and other weapons of mass destruc- 
tion; 

(c) Promotes the propagation of 
fascist-nazi views, of racial and national 
cxclusiveness, and of hatred and con- 
tempt for other peoples.-' 

The U.S.S.K. also proposed accept- 
ance of a series of common "excuses" 
used by aggressors in past incidences, 
but which would no longer be con- 
sidered as justification of aggression. 
These criteria were divided into two 
categories. One was the internal position 
of the State under coercion and these 
included: 

(a) The backwardness of any nation 
politically, economically or culturally; 






49 



(b) Alleged shortcomings of its 
administration; 

(c) Any danger which may threaten 
the life or properly of aliens: 

(d) Any revolutionary or counter- 
revolutionary movement, civil war, dis- 
orders or strikes; 

(c) The establishment or main- 
tenance in any State of any political, 
economic or social system.^" 

The acts or legislation within a State; 
were also removed from possible con- 
sideration as justification for aggression. 
These acts included: 

(a) The violation of international 
treaties; 

(b) The violation of rights and in- 
terests in the sphere of trade, conces- 
sions or any other kind of economic 
activity acquired by another State or 
its citizens; 

(c) The rupture of diplomatic or 
economic relations; 

(d) Measures in connection with an 
economic or financial boycott; 

(c) Repudiation of debts; 

(f) Prohibition or restriction of 
immigration or modification of the 
status of foreigners; 

(g) The violation of privileges 
granted to the official representatives 
of another State; 

(h) Refusal to allow the passage of 
armed forces proceeding to the terri- 
tory of a third State; 

(i) Measures of a religious or anti- 
religious nature; 

(j) Frontier incidents. 29 

In conclusion the Soviet definition pro- 
vided: 

In the event of the mobilization or 
concentration by another State of con- 
siderable armed forces near its frontier, 
the State which is threatened by such 
action shall have the right of recourse 
to diplomatic or other means of secur- 
ing a peaceful settlement of interna- 
tional disputes. It may also in the 
meantime adopt requisite measures of 
a military nature similar to those de- 
scribed above, without, however, cross- 
ing the frontier.^" 

This Soviet definition is the arche- 
type of the so-called "enumerative ,, 
definition which catalogs a wide range 
of aggressive situations. The Soviet for- 
mat has remained stable since 1933, but 



the list has been expanded from the 
original five overt military acts to the 
current list of If) which includes the 
indirect, economic, and ideological cate- 
gories ol aggression. 

The second type of definition ap- 
proaches the subject on a different tack. 
The abstract definition attempts to ex- 
press the meaning of aggression in the 
broadest possible terms. An excellent 
example of the abstract definition is 
that submitted by Mr. Ricardo Alfaro to 
the International Law Commission: 

Aggression is the use of force by 
one State or group of States, or by any 
Government or group of Governments, 
against the territory and people of 
other States or ^Governments, in any 
manner, by any methods, for any 
reasons and for any purposes, except 
individual or collective self-defense 
against armed attack or coercive action 
by the United Nations.^* 

In this definition the "first to com- 
mit" concept is absent, and it does little 
to provide decisionmakers with specific 
guidance. 

A third variant is a "mixed' 1 defini- 
tion which includes an abstract interpre- 
tation of aggression, followed by an 
illustrative, but brief, list of specific 
instances of aggression. 

IV-THE SOVIET DEFINITION VS. 
UNITED STATES POLICY 

In debates on defining aggression a 
large proportion of the "definers" al- 
luded to at least guarded approval of the 
Soviet draft definition. It is apparent 
that if a definition is adopted the 
substance of it will not operate auto- 
matically on the facts of a particular 
case, and, indeed, the "facts" are not 
usually known in early stages of any 
United Nations debate. It would none- 
theless be useful to address the effect of 
an objective application of the defini- 
tion to specific episodes of past U.S. 
foreign policy machinations. In addi- 
tion, the broad implications of the 



50 



definition to the larger policies will be 
briefly examined. 

Broad Implications. The (.barter ol 

the Unitctl Nations stales thai the pur- 
pose ol the organisation is "to lake 
effective collective measures lor the 
prevention ami removal of threats to the 
peace, ami lor the suppression ol acts of 
aggression or other breaches of the 
peace/ 1 [Kmphasis supplied.] 1 The 
charier further provides, under article 
51, for collective or individual self- 
defense against an armed attack until 
the Security Council takes "measures 
necessary to maintain international 
peace and security. "2 The United States 
has frequently resorted to measures 
outside the framework of the United 
Nations through our "securit\ ' agree- 
incuts. This trend in American policy 
was mentioned in a speech by Secretary 
of State Dean Husk in I960 when he 
pointed out that the trend in U.S. 
policy when the machinery of the 
United Nations proved inadequate was 
to reinforce it with other measures.** 

In this context most of our involve- 
ments are concerned with episodes in 
which we have a direct interest in the 
outcome of action against a government 
in power, either in overthrowing a gov- 
ernment unfriendly toward the West or 
retaining in power one oriented against 
communism. These operations generally 
involve "the landing or leading of its 
land, sea or air forces inside the boun- 
daries of another slate . . . "4 in order 
to promote "an internal upheaval in 
another Stale or a reversal of policy in 
favor of the aggressor. "5 

In contrast, the Soviet Union, which 
amassed the greatest territorial gains in 
the World War II period, has largely 
refrained from exporting her armed 
forces to areas of conflict. In areas 
where conflicts requiring force may 
occur, her armies are prepositioned and 
do not require the invasion denounced 
by her own definition. Instead, ihe 
resident Soviet forces can handle anv 
internal difficulties which usually arise 



between the Soviet puppet government 
and a nonpuppel faction with dispatch, 
and the entire affair can be retained in 
the realm ol an internal affair. 

following is a brief investigation of 
the consequences of applying the sub- 
stance of the Soviet definition to a 
series of foreign policy incidents in 
which the U.S. involvement precipitated 
a charge of "aggression" being leveled at 
this country in the United Nations. In 
examining these cases the basic facts of 
the case will be considered objectively 
against the definition with no attempt 
to "legalize" the U.S. position by apply- 
ing the rationale adopted by the United 
States in defending her actions. 

Hungary. 'That State shall be de- 
clared to have committed an act of 
indirect aggression which: (a) en- 
courages subversive activity against an- 
other State; (b) promotes the outbreak 
of civil war within another State. The 
following may not be used as justifica- 
tion [for the acts listed]: alleged short- 
comings of its administration; any revo- 
lutionary or counterrevolutionary move- 
ment."^ Although the Soviet Union 
could probably be found guilty under 
her own definition, clause (d) "lantfing 
or leading of forces inside the boun- 
daries of another State without the 
permission of the government of the 
latter," the question of whether the 
Nagy regime was in actual fact the head 
of government in Hungary is beyond the 
scope of this treatment. In any event 
the Soviets claimed that their entry was 
in reaction to "indirect" aggression 
being committed in Hungary by the 
United States. 

The campaign conducted by Radio 
Free Kurope and the Voice of America 
had a decided effect on the revolution. 
Kor instance, Tibor Meray, a participant 
in the events, described the effect of the 
broadcasts as follows: On 24 October. 
Premier Nagy called for "order, calm, 
discipline" and immediately thereafter 
' . . . a vehement radio campaign was 



51 



launched from abroad against Nagy--a 
campaign that had a fatal effect on all 
thai followed." On .'J I October, Radio 
Free Furopc made the following pro- 
nouncement: 'The Ministry ol IVlcnse 
and the Ministry of the Interior are still 
in Communist hands. Do not let this 
continue, Freedom lighters, do not 
hang your weapons on the wall. "7 When 
considered in the context of the sub- 
stance of the Soviet definition, the 
encouragement from the Voice of 
America and lladio Free Furopc had 
considerable impact on the initiation 
and continuation of the revolt. The 
Radio Free Furope broadcasts verifying 
America's willingness to help, coupled 
with the U.S. inclination toward the 
liberation of Furope, undoubtedly 
raised false hopes and had at least a 
secondary effect on the events. Apply- 
ing the Soviet definition in its most 
literal sense, the United States could be 
found guilty of "indirect" aggression. 

China. The attacker is that state 
winch "first commits the following act: 
bombardment by its land, sea or air 
forces of the territory of another 



state 



'8 



The U.S.S.R. charged that the United 
States had committed aggression and 
violation of Chinese airspace by bomb- 
ing Chinese territorv. A total of 87 
flights had been made over Red Chinese 
territory. The United States claimed 
that 61 of the flights were reconnais- 
sance missions, and no bombs were 
dropped, and on other occasions bombs 
were dropped on Yalu River bridges 
that were not in Chinese territory. Two 
accidental attacks on the Chinese main- 
land were acknowledged by the United 
States. In the light of the Soviet defini- 
tion, the United Stales would have been 
found guilty of aggression. 

Formosa, '...that State shall be 

declared the attacker [aggressor] which 

lirst commits one of the following acts: 

. . . naval blockade of the coasts or 

ports of another State. The following 



may not be used as justification: 
Any . . . civil war; or the establishment 
or maintenance in any Slate of any 
political, economic or social system. ^ 
In 1950 the U.S.S.R. alleged that the 
United Slates was commitling aggres- 
sion in the blockade of ports belonging 
to Red China, 10 and in 1954 charged us 
with committing acts of aggression by 
attacking Red Chinese vessels on the 
high seas. 11 Early U.S. policy enun- 
ciated by President Truman declared 

The United States has no predatory 
designs on Formosa or any other Chi- 
nese territory . . . nor does it have any 
intention of utilizing its armed forces 
to interfere in the present situation. 
The United States government will not 
pursue a course which will lead to 
involvement in the civil {emphasis 
supplied] conflict in China. 12 

Our subsequent action in ordering 
the 7th Fleet to act in restricting Chi- 
nese naval operations and effectively 
"blockading" Chinese ports, in what we 
had previously acknowledged as a civil 
conflict, would have placed us in the 
position of a convicted "aggressor" 
when viewed, in a strict interpretation of 
the Soviet definition. The United States 
contended that the blockade was not, 
per se, a blockade, since commercial 
ship traffic was not interfered with. 13 

Cuba: Quarantine. An aggressor is 
the State which first commits the fol- 
lowing act: "Naval blockade of the 
coasts or ports of another State." 

On 14 October a U.S. reconnaissance 
flight over Cuba detected the presence 
of medium-range ballistic missiles in 
Cuba. 14 The President, in a radio ad- 
dress, accused the Soviet Union of 
deceiving the United States and an- 
nounced plans to establish a naval 
quarantine of Cuba in order to prohibit 
the influx of additional offensive 
weapons.! 5 Prior to the speech a fleet 
of 98 ships, including eight aircraft 
carriers, was prepositioned for im- 
mediate implementation of the Presi- 
dent's announced course of action. 1" 



52 



The first encounter with the incoming 
Soviet ships occurred on the second day 
ol the ijiiarantine, The ship entering the 
i|iiarantiiic Koite \v;i> u tanker, obviously 
nol earning weapons. All other Soviet 
ships reversed course or hailed short of 
the quarantine Eone. The result of the 
naval action and political pressure was 
the promise of the Soviet (loverument 
to withdraw missiles from Cuba.l? 

Under the Soviet definition of aggres- 
sion, the preemptive first-strike type of 
warfare is specifically prohibited, and 
our action, under this definition, would 
have easily qualified as an act of aggres- 
sion. 

Cuba: Bay of Pigs. The State which 
first commits the following is guilty of 
aggression: "Support of armed bands 
organized in its own territory which 
invade the territory of another State." 
The following may not be used as 
excuses for aggressive acts against an- 
other State: "Alleged shortcomings of 
its administration or any revolutionary 
movement. "18 

In I960 the U.S. Government em- 
barked on a plan to invade Cuba and 
overthrow the Communist government 
of Fidel Castro. A group of Cubans had 
been recruited by the CIA in Miami and 
trained by CIA and U.S. military per- 
sonnel in Guatemala. 19 ']h e United 
States was charged by Cuba in the 
United Nations with bombing Cuba, 
organizing, financing, and arming bands 
of Cubans in order to commit aggres- 
sion. An anti-United Stales resolution 
was introduced by Rumania and was 
adopted by the First Committee with a 
vole of 42 for, \\\ against, and 25 
abstentions. This resolution was rejected 
by the General Assembly by a very 
narrow margin-41 for, 35 against, and 
20 abstentions. 20 

On the morning of 17 April 1961, 
1,400 men of the American-trained 
Cuban brigade landed at the Bay of Pigs 
in Cuba. Although the brigade consisted 
primarily of American-trained Cubans, 



the first man ashore in the landing was 
an American. 

In ibis case our action was specifi- 
cally listed as an element which could 
brand a nation the aggressor, and again 
ihe United Stales would have been 
potentially guilty under the Soviet defi- 
nition. 

Iran. The Stale will be guilty of 
indirect aggression which first: "Pro- 
motes the outbreak of civil war within a 
state" or "Promotes a reversal of policy 
in favor of the aggressor." A State will 
be guilty of economic aggression who 
"Takes against another Stale measures 
of economic pressure violating its sover- 
eignty and economic independence and 
threatening the bases of its economic 
life" or "takes against another State 
measures preventing it from exploiting 
or nationalizing its own natural 
riches. "21 

Iran, a destitute country struggling 
for survival, had a singular source of 
large-scale income: oil. Largely because 
of the unfavorable split of royalties 
between the Anglo-Iran Oil Company, 
which monopolized oil resources in the 
country, and the government, Moham- 
med Mossadegh, a newly elected Prime 
Minister, on 1 May 1951 nationalized 
the company. Iranian control of the 
company was frustrated by a Western 
boycott of Iranian oil products. As Fred 
Cook stated in his article 'The CIA," 
'The international oil cartel held firm- 
and Iran lost all its oil revenues. "22 '|he 
loss of income had a severe effect on the 
regime of Prime Minister Mossadegh, 
and within 7 months he was overthrown 
by a coup (Fetal planned and executed 
by the CIA with rather wide public 
knowledge of its activities. Over and 
above the CIA involvement, much 
covert military assistance was provided 
the rebels. In congressional hearings 
conducted in 1954, a Defense Depart- 
ment official declared that: 

When the crisis came on and the tiling 
was about to collapse, we violated our 
normal criteria and among the other 



53 



tilings we did, we provided the army 
immediately [with material] on an 
emergency basis . . . the guns that they 
had in their hands, the trucks they 
rode in, the armored cars that they 
drove through the streets, and the 
radio communications that permitted 
their control, were all furnished [by 
the United States]. 23 

The result of the coup was a govern- 
ment favorable to the West and the 
internationalization of the Anglo- 
Iranian Oil Company. Again, viewing 
the U.S. involvement in retrospect and 
in relation to the Soviet definition, the 
United States would have been guilty of 
aggression on several counts. 

Dominican Republic. The State 
which first commits the following acts is 
guilty of aggression: Invasion by its 
armed forces, even without the declara- 
tion of war, of the territory of another 
State. The following may not be used as 
justification for the aggressive acts: Any 
danger which may threaten the life or 
property of aliens or any revolutionary 
or counterrevolutionary movement. 24 

On the afternoon of 24 April 1965, a 
radio station in Santo Domingo was 
siezed by a group of revolutionaries 
attempting to overthrow the regime of 
Donald Cabral in favor of the pro- 
Communist Juan Bosch. The rebels were 
attempting to inspire a general uprising 
from the populace. 2 5 That same even- 
ing a task group of U.S. Navy ships, 
headed by the carrier U.S.S. Boxer with 
five support ships, was alerted for pos- 
sible action in the revolt. As the fighting 
developed the tide seemed to be turning 
against the rebels, and the task group 
was ordered into position. 2 ** The U.S. 
officials proposed to evacuate civilians 
from the embattled city and were 
promised immunity by both sides, the 
rebels and loyalist government. By the 
evening of 27 April, about 1,200 evacu- 
ees, U.S. citizens, had been moved from 
the beach to units of the task force. 2 7 
On that same day the rebel position 
improved by their capture of the Presi- 



dential palace and stiffening resistance 
in other parts of the city. 2 ** 

The next day Ambassador Bennett 
reported that there were "Leftist 
forces'' opposing a three-man military 
junta acceptable to both rebels and 
loyalists. 2 ^ This report also requested 
troop assistance prompted by a request 
from the junta for assistance in "pre- 
serving the peace." The President, after 
receiving reports of possible danger to 
U.S. citizens, gave an order to land 
troops in the Dominican Republic. The 
task group commander stated during a 
news conference that the Marines were 
sent ashore to protect American lives 
and "to keep this a non-Communist 
government. "30 

Our troops, with a maximum streng- 
th of about 20,000, actively cooperated 
with the loyalist government in suppres- 
sing the rebel movement and effecting a 
cease-fire. The United States was subse- 
quently accused of violating both the 
United Nations Charter and the OAS 
Charter. The resolution, introduced by 
Russia, would condemn the United 
States for its action and call for imme- 
diate withdrawal of troops. 31 

If the U.S. actions were considered, 
using the precepts of the Soviet defini- 
tion, the United States would have been 
found guilty of aggression. 

V--POTENTIAL DANGER 

FOR AMERICA IN THE 

UNITED NATIONS 

The Danger of Definition. If a defini- 
tion of aggression can exert any adverse 
effect on the goals of the United States 
and its posture in the world community, 
it will necessarily result from the defini- 
tion being applied to our actions by a 
United Nations majority disenchanted 
with the U.S. machinations in world 
politics. In otiier words, because our 
policy is particularly susceptible to at- 
tack by an objective application of the 
Soviet definition, it will furnish a more 



54 



easil) identifiable mechanism lor indict- 
ment ol U.S. policies by a hostile 
I mtcd Nations membership, lor ex- 
ample, ii is possible that in an incident 
involving the Vmcrican use ol force, the 
I nitcd Nations membership could be 
presented with the In is of the case, and 
an application of the Soviet definition 
to these lads might indicate a clearly 
identifiable case ol aggression. It is 
obvious that this procedure would not 
affect the votes of nations solidly back- 
ing the U.S. position, hut it could 
provide the impetus to push borderline 
cases to the anti-U.S. votes. The border- 
line nations are those that are becoming 
increasingly alarmed with the handling 
of world affairs by the United States 
and would welcome a bona fide excuse 
for voting against her. The ability to 
provide a prima facie case of aggression 
against the United States could well 
provide the necessary excuse. 

Is the United States in a position to 
become a target of adverse reaction in 
the United Nations to acts of violence 
that are now conducted with impunity 
in a legal framework? 

Early U.S. Dominance. The past his- 
tory of the United Nations is replete 
with examples of the United States 
posting significant political victories 
over the Communist minority. As the 
major contributor to the United Nations 
budget and a primary source of the 
worlds foreign aicJ supply to smaller 
nations, the United States has been able 
to exercise enough influence to assure a 
lavorahle vote, during the early years, in 
any matter of substance placed before 
the United Nations. In regard to the 
General Assembly, Krnest A. Gross has 
offered evidence in the record of the 
United States: 

The American leadership record in 
this forum is a proud one. In the years 
1946 through 1953 the General Assem- 
bly adopted over 800 resolutions. The 
United States was defeated in less than 
3 per cent-and in no case where our 
important security interests were in- 



volved. In these eight years only two 
resolutions supported by lis failed of 
adoption. ' 

The early predominance ol the 
United Stales did not escape note h\ 
the Soviet Union. Very early in the, 
United Nations existence they explained 
their defeats by pointing out that the 
imperialists were attempting to turn the 
United Nations into a branch of the 
American State Department to imple- 
ment their plans for "Anglo-Saxon 
domination. "2 Many writers at that 
early stage warned of the steamroller 
tactics being developed by the United 
States. 

Hints of U.S. Decline. In recent years 
it has become increasingly apparent that 
the early dominance of the United 
Slates would probably not continue 
unchecked. Tin; increase in membership 
of the United Nations has been pro- 
gressing steadily, with new members 
consisting primarily of small ex-colonies 
with a latent hostility toward any co- 
lonial power-and the United States was 
branded a colonial power by associa- 
tion, if not in fact. In addition, U.S. 
policies in and out of the world organi- 
zation seemed designed to antagonize 
the United Nations members and make 
the task of U.S. "lobbyists" in gathering 
favorable votes even more difficult. A 
harbinger of potential trouble lor the 
United States was voiced by Richard 
Gardner, when he staled: 

There is no ironclad guarantee for 
the United States in the present pro- 
cedures of the United Nations. All one 
can say with assurance is that the 
procedures are extremely favorable to 
our country and that the authorization 
of a peace keeping action against our 
opposition is difficult to imagine, as- 
suming always that the American posi- 
tion is reasonably founded in justice 
(emphasis supplied] and the United 
Nations Charter.** 

Mr. Gardner's statement alludes to 
the necessity of maintaining a position 
based on justice, a key point in thai a 



55 



just position would easily become signi- 
ficantly more difficult to maintain 
under t lie mantle of the Soviet defini- 
tion of aggression.. 

rr 

The United States seemed in many 
ways to earn its reputation as a cham- 
pion of colonialism and, in so doing, 
alienate a large portion of the United 
Nations voting slrenglh-for example, 
our support of colonialism during the 
15th Session. In his report to Congress, 
Senator Wayne Morse pointed out that 
the United States either abstained or 
voted "no" on all the major colonial 
resolutions, and, in so doing, it had 
branded itself as a supporter of colonial- 
ism. He pointed out as an example of a 
typical faux pas the American support 
of Portugal in claiming that her overseas 
holdings were not territories but metro- 
politan provinces, thus exempting her 
from international interference since 
domestic law would apply. Senator 
Morse reported that he was confronted 
with many protests or criticisms of the 
U.S. vote by members who, although 
professing a strong desire to maintain 
friendship with the United States, found 
it increasingly difficult to do so. Senator 
Morse summed up our position as fol- 
lows: 

Yet, our vote on this resolution was 
so irreconcilable with the clear mean- 
ing of Articles 73 and 71 of the I I.N. 
Charter and with our professed ideals 
about supporting indigenous people in 
their struggle for independence that 
many of our friends in the Fourth 
Committee were at a complete loss to 
understand our vote. They did not 
want to believe whal Ihey feared and 
suspected, but they didn't hesitate to 
tell me that they suspected that Penta- 
gon influence, military bases, and the 
NATO alliance were the controlling 
factors that dictated the United States 
vote. 4 

In a similar vote on a resolution 
calling for South West Africa to permit 
a subcommittee to visit the country and 
report on conditions, the United States 
abstained rather than vote for the ob- 
viously anticolonial measure. As Senator 



Morse reported, "The United States 
vote of abstention on this resolution 
was very harmful because once again we 
appeared to be sustaining policies ol a 
colonial power whose policy in South 
West Africa has aroused deep resent- 
ment among many African Nations. "«» 

The influx of new slates, each with 
potentially hostile attitudes toward the 
United States, changed the complexion 
of the United Nations rather radically. 
When the organization was founded 
there was a total of 51 members, only 
two of which were from Black Africa: 
Ethiopia and Liberia. The membership 
now totals 117, with 33 African States 
who, combined with the Asian and 
Mid-East States, constitute over 50 per- 
cent of the membership. This "Afro- 
Asian" bloc, in combination with the 
Communist bloc, could theoretically 
command over 60 percent of the vote- 
close to the two-thirds majority re- 
quired for substantive issues. 

The effects of our policies in the 
United Nations are obvious. A com- 
monly used indicator of the U.S. in- 
fluence in the Assembly, principally 
because it recurs so often, is the vote on 
the perennial issue of seating the 
People's Republic of China. As reported 
in the International Review Service, 

Until 1955, votes for a postpone- 
ment of consideration were carried 
with ease, there being at least three 
times as many votes in favor of the 
moratorium as those against. This 
situation gradually changed with the 
admission of new Member States, 
especially from Asia and Africa, afler 
1953. In 1956, the vote favoring post- 
ponement was down to 2 to 1. This 
gap continued to narrow, and in 1960, 
the difference became a mere 8 votes. 
Equally significant was the fact that all 
newly admitted African States cither 
abstained from or opposed the annual 
U.S. proposal. A move by Nepal for 
the inclusion in the agenda of the 
question of Cliinese representation was 
defeated by the difference of only 4 
votes.6 

In the 20th General Assembly a 
resolution calling for seating of Red 



56 



Chini resulted in ■ tie vote with 47 lor 
and 47 against, indicating the significant 
weakening ol the I'.S. position from its 

previous position as the moldcr of 
United Nations voting patterns. An illus- 
tration ol this trend against the United 
Slates is provided in table I, which is a 
plot of the percentage of nations voting 
with the United Stales as compared to 
the total number voting. 

During the framing of the United 
Nations Charter the American delega- 
tion, in concert with the other great 
powers, insisted on inclusion of the veto 
power in the Security Council in order 
to insure that no peacekeeping action 
could be initiated against the major 
world powers. The framers recognized 
that any such collective security action 
was not in the interest of a stable world 
situation. In later years the United 
States, viewing with horror the Soviet 
use of the veto in the Security Council, 
introduced the Uniting for Peace Reso- 
lution to allow the General Assembly to 
act, under certain circumstances, in 
opposition to the veto of a permanent 
member. Although, at the time of its 
introduction, the action appeared 
sound, it was not universally applauded. 
Among those who professed concern 
was Inis Claude, Jr., who stated that the 
United Nations ' . . . should not chal- 
lenge a recalcitrant great power.' ? 

\t the time the Uniting for Peace 
Resolution was adopted, it appeared 
certain thai it could never be turned 
against iis creators because of built-in 
safeguards. Not only did the United 
States have a distinct dominance in the 
General Assembly, but in the Security 
Council as well. One of the stipulations 
for implementing the Uniting for Peace 
Resolution is that the Security Council 
be paralyzed by a veto and "fails to 
exercise its primary responsibility' 1 in 
cases involving threats to peace, breach- 
es of the peace or acts of aggression. 
Since the United States has always been 
able to obtain the support of a majority 
of Security Council members, it has 



been able to refrain from using, the veto 
power tu eases inimical to U..^. interests, 
thereby preempting application of the 
provisions of Uniting for Peace. 

An analysis of the voting record in 

Security Council cases involving charges 
of aggression against the United Slates 
indicates that although the United 
States has never been in jeopardy of 
having to veto a measure, an increas- 
ingly narrow margin of votes is cast in 
favor of the United States. A graph of 
the voting record in seven complaints 
against America is shown in table 11. 
Although the voting record of the Coun- 
cil shows only a slight trend against U.S. 
interests, an analysis of Security Council 
debates provides an even greater insight 
into the decline of American influence. 
In the same seven cases, and in two 
others where no vote was taken, a 
tabulation of debating records was 
made, classifying countries as being in 
one of three categories: Pro-United 
States, meaning that they participated 
actively in defending the United States 
position; Neutral, meaning that they 
either did not participate in debate, or 
that they were noncomnuttal in defend- 
ing U.S. actions; and Anti-United States, 
meaning they debated actively against 
the U.S. position. The graph, shown in 
table III. is a tabulation of these results. 
The pattern shows the marked decrease 
in active support garnered by the United 
States in the Security Council during 
recent years. 

An inspection of the record indicates 
a trend away from the U.S. position in 
the Security Council. The indications 
are that in future instances of interven- 
tion the United States may well have to 
exercise its veto power in the Council to 
thwart action against its interests. In 
this case the Assembly will be in a 
position to act under the Uniting for 
Peace Resolution. Armed with the So- 
viet definition of aggression, the charge 
of aggression against the United Stales 
could well be sustained bv an increas- 



57 



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60 



ingls hostile United Nations member- 
ship. 

PllUic Opinion in tin* World Arena. 

Pile si rt* i iii 1 1 1 ol I lu* I niton Stales in 1 1 u* 
United Nations is based primarily upon 
ill' political posture ol ihe member 
nations, I • 1 1 1 this political alignment is 
influenced proloundlv by public 
opinion within each individual member. 
In a recent article in U.S. News and 
World Report, the shift of altitudes of 
people in representative nations of the 
world was found to be away from 
support of internationalism. As an 
example, in a public opinion poll only 
28 percent of Britons favored helping 
the United States in a major crisis 
involving Russia, and only 21 percent 
favored support of the United States in 
Vietnam." Similar loss of enthusiasm 
for American leadership was reported in 
Italy. The growing tide of resentment 
against [l.S. foreign policy can be ex- 
pected to produce an even further de- 
cline of American influence in the 
United Nations during subsequent ses- 
sions. 

VI-SUMMARY AND CONCLUSIONS 

The United Stales has, in recent 
years, pursued a policy of opposition to 
the concept of defining aggression for 
use in determining the a<i<Tessor in cases 
under consideration by the United Na- 
tions. The Soviet Union, on the other 
hand, has been instrumental in leading 
the elforl to adopt such a definition and 
repeatedly submitted its own dralt 
definition enumerating various acts 
which could be considered elements of 
aggression. The clash of the two super- 
powers on this issue raises the question 
of whether or not the United Slates has 
accurately appraised the ramifications 
of adopting a definition by the As- 
sembly, and if opposition to the Soviet 
proposal is in the best interest of the 
United States. 

The United States has consistently 
maintained the position that aggressive 



\\;ii is lolalK outside its policy aims and 
has denounced an\ perpetrator of ag- 
ression as an international criminal. 
This policy was steadfastly maintained 
in the face ol opposition of many other 
nations in the world community. The 
Russian and French delegations at the 
conference for development of the 
charter for the Nuremberg trials 
adopted a position that a general out- 
lawry of aggressive war should not 
necessarily be the subject of codifica- 
tion in the charter. 

The United States has stood in the 
van of the movement for outlawing 
aggressive war but, in recent years, has 
generally opposed attempts to define 
aggression, particularly in the United 
Nations. The policy contrasts with early 
recognition of various definitions in 
treaties and conferences. Again, re- 
ferring to the Nuremberg conferences, 
the U.S. delegate favored inclusion in 
the charter of a definition almost iden- 
tical to an earlier Russian proposal, and, 
in this instance, the Russian delegate 
opposed inclusion of a definition that 
originated with his countrymen in 1933. 
In United Nations deliberations on the 
definition, the first of which occurred in 
1957, the United States adopted a 
general policy of opposition to the 
subject on grounds that the definition 
was neither possible nor desirable. 

This policy was taken even though a 
majority of the members considered 
definition both possible and desirable. 
There was rather widespread disagree- 
ment over the form of the definition. 
Those favoring defining were split into 
two basic camps: first, those who fa- 
vored the Soviet definition, the "enu- 
lucrative" type which categorized sev- 
eral acts that constituted aggression. 
This tabulation was subdivided into 
general, ideological, and economic 
aggression. The list of aggressive actions 
was followed by a series of situations 
which could not be used as excuses for 
aggression. The second group of "de- 
finers ,, favored a rather broad, abstract 






61 



definition Lliul embraced only general 
terminology which could be liberally 
interpreted. 

The policy of the United Slates in 
opposing the concept of definition must 
be considered in the context of how 
such a definition would affect American 
foreign policy, assuming that the posi- 
tion held by the United States was 
generated by valid causative factors, and 
not simply because the proposal was put 
forth by the Russians. 

The basic tenet of the Soviet defini- 
tion is that the first party to commit 
any of the various acts is the guilty one. 
These acts generally involve moving 
troops across borders, attacking by 
other means, establishing blockades, 
support of armed bands, or promotion 
of political upheaval in other Stales. 
The United States has traditionally 
intervened in cases where American 
interests were threatened by overthrow 
of a friendly government or where 
establishment of a favorable regime 
could be effected. In this instance it has 
generally been necessary to make either 
overt or covert movements of troops 
and to attack by sea or airpower, in 
direct violation of the conditions of the 
Russian definition. 

The current problems besetting the 
United Stales in its overseas troop com- 
mitments have drastically reduced the 
in-country strength of her Armed 
Forces throughout the world and have 
produced a situation that will require 
even more obvious responses of the 
United States in crises involving her 
national interest. In contrast, the Soviet 
Union, being a major continental power, 
can maintain Soviet or Soviet-controlled 
troops in potential trouble areas that 
can adequately cope with any develop- 
ing situation. Under such conditions it 
will be generally unnecessary for her to 
undertake the troop movements across 
international borders specifically pro- 
hibited in her definition. Russia has 
instead espoused the principle of waging 
war through ideological campaigns 



rather than furthering her national inter- 
ests through direct military involve- 
ment. 

In considering specific instances of 
United States foreign policy episodes 
against the Soviet definition, a large 
proportion of the events prove to be in 
direct conflict with the substance of this 
definition. A general review of incidents 
indicates that the U.S. actions could 
generally result in a finding of "guilty" 
against the United States. 

The implications of the definition are 
unimportant if the United States main- 
tains her position as moldcr of world 
opinion and leader of the majority of 
the United Nations. The adverse effects 
of the definition could become opera- 
tive in cases where the United Stales 
stands in a situation where she is op- 
posed in principle by a sufficient num- 
ber of the member States. In these 
circumstances many of the borderline 
States normally amenable to American 
policies could be shaken from their 
traditional vote on the side of the 
United States by the clear violation of 
the criteria of aggression. This evidence 
in "black and white" could provide a 
suitable excuse for casting a vote for 
world order. 

An analysis of the record of the 
United Nations indicates that circum- 
stances could arise where the U.S. inter- 
ests would indeed be influenced by 
declining power over member nations. 
In the General Assembly the trend is 
definitely toward fewer nations voting 
with the United States on major issues. 

During the early phases of United 
Nations development no action could be 
taken against the U.S. interests regard- 
less of "guilt " or "innocence" in any 
particular crisis. The Security Council 
was the only United Nations body that 
could enforce sanctions against offend- 
ing nations, and the United States con- 
sistently could muster a sufficient num- 
ber of votes to defeat any adverse 
action, even without the use of the veto 



62 



power given to tlie five permanent 
members. The Americans had provided 

I means for bypassing the Security 
Council when action was precluded 
through the application of a veto. This 
provision, the Uniting for Peace Resolu- 
tion, was intended primarily to provide 
for United Nations actions in the face of 
a Soviet veto. The United States has 
never had to use a veto in the Security 
Council, since enough votes could be 
garnered to defeat any resolution ad- 
verse to United States interests. An 
investigation of the trends exhibited in 
the Security Council indicates that the 
leadership of the United Slates has 
declined in recent years. 

The overall implication is that the 



United States, in the face of steadily 
declining popularity in the world com- 
munity, could he confronted with con- 
demnation by adverse world opinion in 
a situation involving the use of interna- 
tional force. Under these conditions the 
existence of a definition of aggression, 
particularly the enurnerativc type 
espoused by the Soviet Union, could be 
used as a lever to swing the vote of the 
United Nations membership against the 
United States. 

It is concluded that the policy of the 
United States in opposing the definition 
of aggression is in the best interests of 
her larger foreign policy, and that con- 
tinued opposition in subsequent years 
will become increasingly important. 



FOOTNOTES 



I--AN OLD ISSUE REVISITED 

1. "Definition of Aggression," UN Monthly Chronicle, December 1967, p. 40-41. 

2. Ibid. 

3. Ibid., p. 70. 
4./6iU, p. 60-61. 

5. "Definition of Aggression," UN Monthly Chronicle, January 1968, p. 38. 

6. Ibid. 

7. "Definition of Aggression," UN Monthly Chronicle, December 1967, p. 62. 

8. Ibid., p. 34,35. 

9. "Definition of Aggression," UN Monthly Chronicle, January 1968, p. 37. 

10. Ibid., p. 36. 

11. Ibid., p. 37. 

II--CRIMINALITY OF AGGRESSIVE WAR--THE U.S.POLICY 

1. Inis L. Claude, Jr., "The United Nations and the Use of Force," International 
Conciliation, March 1961, p. 331. 

2. "Five Goals of U.S. Foreign Policy," The Department of State Bulletin, 15 October 
1962, p. 548. 

3. Lyndon B. Johnson, "Text of President Johnson's Address to the U.N.," The New York 
Times, 18 December 1963, p. 14:4. 

4. Qnincy Wright, A Study of War, 2d ed. (Chicago: University of Chicago Press, 1964), p. 
56. I 

5. "Second Hague Convention," U.S. Treaties, etc. Treaties, Conventions, International 
Acts, Protocols, and Agreements between the United States and Other Powers (Washington: U.S. 
Govt. Print. Off., 1910), v. VII, p. 2228. 

6. "Text of Resolutions against Aggression," U.S. Dept. of State, Papers Relating to the 
Foreign Relations of the United States, 1928 (Washington: U.S. Govt. Print. Off., 1942), v. I, p. 
13. 

7. "Pact of Paris," Foreign Relations of the United States. 1928, v. I, p. 3. 

8. Henry L. Stimson, "The Pact of Paris, Three Years of Development," U.S. Dept. of 
State, Foreign Relations of the United States, 1932, Diplomatic Papers (Washington: U.S. Govt. 
Print. Off., 1948), v. I, p. 577-578. 

9. "Codification of International Law, Senate Resolution 45," Congressional Record, 12 
December 1927, p. 477-478. 



63 

10. Renunciation of War Treaty, Paris, August 27, 1928 (Washington: U.S. Govt. Print. Off., 
1933), p. 57. 

11. Lassa F.L. Oppenhcim, International Law, 6th cd. (London: Longmans, Green, 1952), p. 
512ff. 

12. Quoted in Green H. Hackworth, Digest of International 1mw (Washington: U.S. Govt. 
Print. Off., 1943), v. VII, p. 678-679. 

13. Ibid., p. 6,86. 

14. Henry L. Stimson, quoted in Hackworth, v. VII, p. 680. 

15. Wright, p. 61. 

16. Winston L.S. Chruchill, quoted in Sheldon Glueck, The Nuremberg Trial and Aggressive 
RV(New York: Knopf, 1946), p. 111. 

17. Hackworth, v. VII, p. 687. 

18. International Conference on Military Trials, 1945, Report of Robert H. Jackson, United 
States Representative to the International Conference on Military Trials, London, 1945 
(Washington: U.S. Govt. Print. Off., 1949), p. 298. 

19. Ibid., p. 303. 

20. Ibid., p. 333-334. 

21. Ibid., p. 295. 

22. Ibid., p. 295-296. 

23. Ibid., p. 297. 

24. Ibid., p. 299. 

25. Ibid., p. 14-16. 

26. United Nations Charter, Article 2 (3), (4). 

27. United Nations Charter, Article 39. 

HI-DEFINITIONS OF AGGRESSION 

1. Wright, p. 37. 

2. Ibid., p. 43. 

3. Pierino Belli, De re Militari et Bello Tractatus; a Treatise on Military Matters and Warfare 
(Oxford: Clarendon Press, 1936), p. 8. 

4. Robert K. Woetzel, The Nuremberg Trials in International Law (New York: Praeger, 
1962), p. 130. 

5. Richard Zouche, An Exposition of Fecial Law and Procedure, or of Law between 
Nations, and Questions concerning the Same (Washington: Carnegie Institution, 1911), p. 32. 

6. Ibid. 

7. Christian von Wolff, Jus Gentium Methodo Scientifica Pertractatum (Oxford: Clarendon 
Press, 1934), p. 316. 

8. Cornelius van Bynkershoek, A Treatise on the Law of War (Philadelphia: Farrand & 
Nicholas, 1810), p. 15. 

9. Thomas Hobbes, Leviathan (Oxford: Clarendon Press, 1909), p. 98. 

10. William E. Hall, International Law, 5th ed. (Oxford: Clarendon Press, 1904), p. 61. 

11. Thomas E. Holland, The Laws and Customs of War on Land (London: Harrison, 1908), 
p. 2,3. 

12. League of Nations Covenant, Article 10. 

13. Louis B. Sohn, "The Definition of Aggression,'" Virginia Law Review, June 1959, p. 699. 

14. League of Nations, Records of the Conference for the Reduction Limitation of 
Armaments, Series D, v. V, p. 11. 

15. League ^)f Nations, 4th Assembly Document A/34/923, ix. 

16. Inter-American Conference for the Maintenance of Peace, Buenos Aires, 1936, 
Proceedings; Report of the Delegation of the United States of America (Washington: U.S. Govt. 
Print. Off., 1937), p. 277. 

17. International Conference on Military Trials, p. 294. 

18. United Nations Conference on International Organization, 1945, Documents (London: 
United Nations Information Organizations, 1945), v. Ill, p. 585. 

19. Ibid., v. XII, p. 341. 

20. Ibid., p. 342. 

21. Ibid., p. 505. 

22. United Nations, General Assembly, Official Records, Scss. VU, 308th Plenary Meeting, 
Resolution 378, B(v) (New York: 1951 ). 

23. United Nations, General Assembly, Official Records, Sess. VII, Supp. 20, Resolution 688 
[vii], A/2361 (New York: 1951), p. 63. 



64 

2 l. United Nations, General Assembly, Special Committee on tlic Question of Ocfitiiiig 
Aggression, Report, 9th Seat,, Supp. 11, A/2638 (New York: 1954), p. 13. 
25. Ibid. 
_'<». Ibid, 
2 7. Ibid. 
28. Ibid. 
2'> Ibid. 

30. tout 

31. United Nations, International Law Commission, Yearbook, 1951 (New York: 1957), v. 
II, p. 37. 

IV-THE SOVIET DEFINITION VS. U.S. POLICY 

1 . United Nations Charter, Article III. 

2. United Nations ('barter, Article 51. 

3. Dean Rusk, "Requirements for Organizing the Peace," The Department of State Bulletin, 
31 October 1966, p. 6511-663. 

1. Soviet Draft Definition, Document (A/AC.66/L/2/Kev. 1). 

5. Soviet Draft Definition, Article 2(c). 

6. Soviet Definition, Clause 2 (a,b,c); Article 6A(b,d). 

7. Tibor Meray, Thirteen Days That Shook the Kremlin (New York: Pracgcr, 1959), p. 154. 
B. Soviet Definition, Article 1(c). 

9. Soviet Definition, Article 1(e); Article 6A(d,e). 

10. United Nations, General Assembly, Official Records, 328th Plenary Meeting, 13 
February 1951, A/C.l/637 and A/1776 (New York: 1951). 

11. United Nations Document (A/AC.76/L/26). 

12. Quoted in John Spanier, The Truman- Mac Arthur Controversy and the Korean War 
(Cambridge, Mass.: Belknap Press, 1959), p. 51-61. 

13. United Nations, General Assembly, Official Records, 328th Plenary Meeting, 13 
February 1951. 

14. Arthur M. Schlesinger, A Thousand Days (Boston: Houghton Mifflin, 1965), p. 172. 
15./feiU, p. 812. 

16. Ibid., p. 815. 

17. Ibid., p. 823. 

18. Soviet Definition, Article 1(f), Article 6(b). 

19. Schlesinger, p. 274. 

20. United Nations, General Assembly, First Committee, Official Records. Mexico: Draft 
Resolution, 18 April 1961, A/C1/L275 (New York: 1965); United Nations, General Assembly, 
Official Records, Report of the First Committee, Complaint Made by the Revolutionary 
Government of Cuba, 21 April 1961, A/4744 (New York: 1965). 

21. Soviet Definition, Article 2(b,c), Article 4(a,b). 

22. Fred J. Cook, "The CIA," The Nation, 24 June 1961, p. 548. 

23. Quoted in Robert Engler, The Politics of Oil (New York: Macmillan, 1961), p. 53. 

24. Soviet Definition, Article 1(b), Article 6-l(c,d). 

25. "Power-and the Ticking of the Clock," Newsweek, 10 May 1965, p. 35. 

26. Rathvon McC. Tompkins, "Ubique," Marine Corps Gazette, September 1965, p. 34. 

27. Tad Szulc, "Dominican Revolt Fails after a Day of Savage Battles," The New York 
Times, 28 April 1965, p. 1:3. 

28. Tompkins, p. 35. 

29. Tad Szulc, "When the Marines Stormed Ashore in Santo Domingo," The Saturday 
Fining Post, 31 July 1965, p. 42. 

30. Ibid. 

31. United Nations, Security Council, Union of Soviet Socialist Republics: Draft Resolution, 
4 May 1965, S/6328 (New York: 1965). 

V-POTENTIAL DANGER FOR AMERICA IN THE UNITED NATIONS 

1. Ernest A. Gross, "Why the U.S. Needs the U.N.," Foreign Policy Bulletin, 15 September 
1954, p. 2. 

2. "Russians Say U.S. Would Rule U.N." The New York Times, 6 November 1946, 35:5. 

3. Richard N. Gardner, "The United Stales and the United Nations," The Department of 
State Bulletin, 17 September 1962, p. 425. 



65 

4. United Nations, General Assembly, The United States in the United Nations-a Turning 
Point. Supplementary Report by Sen. George D. Aiken (Washington: U.S. Govt. Print. Off., 
1961), p. 9-11. 

5. Ibid., p. 16. 

6. Avrahm G. Mezerik, ed., China Representation in the U.N. (New York: International 
Review Service, 1966), p. 16. 

7. Inis L. Claude, Jr., Power and International Relations (New York: Random House, 
1962), p. 172. 

8. "Changing Mood in Today's World," U.S. News & World Report, 29 January 1968, p. 
40-41. 

Y_ 



66 



SOME PERSPECTIVES ON REVOLUTION 



Thomas B. Grassey 



For many years people in the United 
States argued that the outcome of the 
Vietnam conflict would have critical 
implications for the future of freedom 
everywhere. The familiar argument ran: 
If the Communists were victorious, 
Western security would be weakened; 
but if the Communists were defeated in 
Vietnam, we would have met "The 
Third Challenge," "Wars of Liberation," 
and convinced the enemy that he could 
not succeed in world conquest by 
proxy. 

The insurgency in Vietnam finally 
has reached its conclusion. Perhaps now, 
more than a decade after American 
combat units were introduced to help a 
friendly government deal with an ex- 
ternally supported insurgency and 3 
years after those forces were withdrawn 



*This essay is based on a lecture given in 
August 1975 at the Naval Amphibious 
School, Coronado, California. 



under "peace with honor," it is possible 
to see why our counterinsurgency effort 
failed. 

The paragraph has an odd ring to it. 
There is something strange -and in that 
strangeness we may find at least part of 
the answer to the question, "Why did 
our counterinsurgency efforts fail?" Try 
reading the paragraph again, substituting 
revolution for insurgency and counter- 
revolutionary for counterinsurgency. 

What I wish to examine, therefore, is 
not Vietnam but the fundamental con- 
ceptual errors of which Vietnam was 
merely a symptom. For if we mis- 
conceived the situation, our loss might 
not be as ominous as we had feared; if, 
however, our misconceptions con- 
tributed to or even caused our failure, 
we must correct them before they are 
repeated. 

How we define situations, what 
labels we attach to realities, which 
words we use in thinking about the 



67 



problems we face greatly influence our 
judgments and behavior. If we are be- 
witched by false labels, we will make 
bad decisions. And one of the most 
disastrous false labels currently in our 
national vocabulary is "counterinsur- 
gency." Of course, it is not an acciden- 
tal false label; Americans are deeply 
opposed to being "counterrevolution- 
aries." So we almost invented this odd 
word and deliberately applied it even to 
places where it was wildly inappropriate 
(the "meat and potatoes" cases of our 
counterinsurgency courses have been 
Vietnam, China, Cuba, Algeria and 
Malaya). Unwilling to think about 
"counterrevolution," we labeled all our 
activities "counterinsurgency" and be- 
came literally unable to discriminate 
between an insurgency and a revolution. 
It is time to recall that distinction. 

"Insurgency," a word used mostly in 
international law, is defined as "a revolt 
against a government, not reaching the 
proportion of an organized revolution, 
and not recognized as belligerency." 
Since "insurgency" is defined relative to 
revolution, what is a revolution? 

A revolution may be distinguished 
from a coup d'etat, foreign invasion, 
military seizure of power, rebellion, and 
insurgency by several indicators. The 
most obvious is that a revolution has 
sizable (though not always majority) 
organized popular support. It aims at a 
redistribution of political power, al- 
though social, economic and cultural 
changes may accompany this shift. It 
usually involves violence; some writers 
(including Frantz Fanon, Regis Debray 
and Karl Marx) consider violence essen- 
tial to a revolution, but they confuse a 
usually necessary tactic with a defini- 
tion of the goal. "Nonviolent revolu- 
tion" is not a contradiction in terms: 
Gandhi led one such revolution in India, 
and Lenin surprised himself by coming 
close to a nonviolent Bolshevik revolu- 
tion in Russia. However, revolutionary 
activities must be illegal or the changes 
in society, no matter how radical, will 



be the results of a constitutional process 
(Hitler's 1933 accession to power) or a 
successful reform movement (U.S. 
women's suffrage). The truly essential 
element in revolution is the rejection of 
governmental legitimacy: the deliberate 
and explicit denial of the government's 
right to enforce its rules and laws. So a 
revolution is an organized, popularly 
based attempt to alter radically the 
existing political structure, usually by 
violent and always by illegal means. 

Of all the myths about revolutions, 
the most prominent American miscon- 
ception is that their cause is material 
deprivation -poverty, hunger, bad 
health and overcrowding. History does 
not support such a thesis, but instead 
offers jiotable exceptions. In 1958 Cuba 
had a large middle class and one of the 
highest per capita incomes in Latin 
America. It should have been one of the 
least likely candidates for revolution in 
the Western Hemisphere if the "depriva- 
tion" thesis were true. Although grind- 
ing poverty is endemic to India, that 
country has not experienced a revolu- 
tion since achieving independence. The 
Poles and Hungarians had incipient revo- 
lutions in 1956 although they enjoyed 
higher standards of living than their 
quiescent bloc neighbors. Historians 
agree that the American Revolution did 
not result from material want. It is true 
that poverty is a prominent feature of 
most societies facing revolution; but the 
difference between correlation and 
causation is one which we Americans 
persistently ignore in justifying foreign 
aid, planning military civic action pro- 
grams, sponsoring the Peace Corps, and 
studying revolution. 

Curiously, the notion that material 
deprivation causes revolution is purely 
Marxian. Marx thought his great "dis- 
covery" was that economics determines 
the structure and processes of every 
society. 

The general conclusion at 

which I arrived . . . may be briefly 

summed up as follows: In the 



68 



social production which men 
carry on they enter into definite 
relations that are indispensable 
and independent of their will; 
these relations of production cor- 
respond to a definite stage of 
development of their material 
powers of production. The sum 
total of these relations constitutes 
the economic structure of society 
-the real foundation, on which 
rise legal and political superstruc- 
tures and to which correspond 
definite forms of social conscious- 
ness. The mode of production in 
material life determines the gen- 
eral character of the social, politi- 
cal, and spiritual processes of life. 
It is not the consciousness of men 
that determines their existence, 
but, on the contrary, their social 
existence determines their con- 
sciousness. At a certain stage 
. . . the material forces of produc- 
tion in society come into conflict 
with the . . . property relations 
within which they had been at 
work before .... Then comes the 
period of social revolution. 1 
Marx believed that, by its very na- 
ture, capitalism must lead to greater and 
greater disparity between the rich few 
and the impoverished masses, with 
worse and worse material exploitation 
of the laboring class. Finally, and in- 
evitably, the oppressed will rise in revo- 
lution against the world's rich to abolish 
private property and establish the class- 
less, Communist society. Although 
Americans often accept and promulgate 
this strictly Marxist idea that poverty, 
hunger and bad living conditions cause 
revolutions, the fact is they do not. 
Conversely, despite our national pre- 
occupation with material wealth, revolu- 
tions cannot be prevented merely with 
better food, housing, clothing and 
health care. Marx was wrong, and so is 
this American myth of what causes (or 
prevents) revolution. 

Some social scientists (e.g., 



Durkheim, Lasswell), after considerable 
research, have concluded that the cause 
of revolution is frustration. We en- 
counter graphs and tabular charts, 
"curves of rising expectations," mea- 
sures of individual discontent and social 
anomie, and useful or obscurant 
theories of cohesion and social break- 
down. Brian Crozier begins his book: 
Frustration is the one element 
common to all rebels, whatever 
their aims, political ideals or social 
backgrounds . . .. What, then, is 
frustration? For my purpose, it is 
simply the inability to do some- 
thing one badly wants to do, 
through circumstances beyond 
one's control. 2 

One may readily agree that a revolu- 
tionary is frustrated, but this is not a 
markedly useful distinction since almost 
all human beings are in various ways 
frustrated. Moreover, many of these 
theories are simplistic blanket notions 
that barely cover the heroic dedication 
one finds among revolutionaries. John 
Paul Jones' crew, Washington's Valley 
Forge army, and Nathan Hale were 
"frustrated." Algerians who were 
brutally tortured by French para- 
troopers resisted because of "the dis- 
parity between goal visualization and 
goal achievement." Ho Chi Minn was a 
revolutionary for 60 years because he 
experienced severe social anomie, and so 
forth. Since social scientists are reluc- 
tant to make implicit value judgments 
by using words like "good," "bad," 
"right," and "wrong" (a scientist "ob- 
serves facts," he does not "make moral 
judgments"), and due to our own pre- 
occupation with material wealth, we 
have all but forgotten the classical po- 
litical theory upon which America was 
built. 

"The masses of men make revolu- 
tion," Aristotle wrote, "under the idea 
that they are unjustly treated." 3 Jus- 
tice, for Aristotle, consisted of treating 
equals alike and unequals differently, 
but in proportion to their relevant 



69 



differences. This supports the idea that 
all men are equal in a fundamental sense 
(the right to be treated justly), yet it 
allows for dissimilar treatment based on 
inequalities among men. We are not 
obliged to hold that justice requires 
treating everyone alike, so that all of us 
must receive identical amounts of food, 
clothing, housing, education, entertain- 
ment and honors. But we are required 
to show that some relevant difference 
between persons justifies the privileges, 
benefits and burdens each is assigned. 
Thus a ship's captain is entitled to 
treatment different than a deckhand's 
because of the difference in responsi- 
bilities. Even so, this is always propor- 
tional, and there are limits beyond 
which the captain-deckhand differen- 
tiation cannot be presumed to justify 
extreme disparities in treatment. 

If "the masses of men make revolu- 
tion under the idea that they are un- 
justly treated," the key question is: 
What do men think is unjust? For 
injustice is not a natural phenomenon 
like rainfall or difference in height ; it is 
a human concept, dependent for its 
existence on value judgments made by 
individuals. Feudal serfs who believed 
that God made some men to be poor, 
cold, hungry serfs and other men to be 
rich, warm, well-fed lords saw no in- 
justice in their situation. Despite being 
miserable themselves, and aware of their 
baron's luxuries, they did not revolt. 
Our modern world has parallels: with a 
long Brahmin-Parish caste heritage, 
Indian society has tended to accept as 
just great inequalities in the treatment 
of people. Mao Tse-tung wrote that his 
biggest problem in 1928 was getting the 
peasants to realize that something was 
wrong with Chinese society, that some- 
thing better was feasible. Fidel Castro's 
main support came not from the peas- 
ants but the educated and middle class 
-those who were materially comfort- 
able but who felt unjustly excluded 
from a genuine political process. 

A revolutionary situation exists when 



people feel unjustly treated to a severe 
degree, and not because of poverty, 
frustration or even glaring social in- 
equalities. John Adams understood this 
point. He knew that the American 
struggle was not really over taxes or the 
king's policies or various acts of Parlia- 
ment. The issue was sovereignty, the 
right in justice of a people to govern 
themselves, and Adams wrote: 

The Revolution was effected 
before the war commenced. The 
Revolution was in the hearts and 
minds of the people .... This radi- 
cal change in the principles, 
opinions, sentiments and affec- 
tions of the people, was the real 
American Revolution. 4 [His 
emphasis.] 

Another myth which we Americans 
have incorporated in our current view of 
revolution is that of the outside agita- 
tor. It is true that a revolution requires 
leadership and organization. Someone 
must think "this is unjust"; someone 
must propagandize to convince others 
that there is an attractive and attainable 
alternative to the present-felt injustice; 
and someone must be willing to break 
laws, engage in violence, and risk his 
own safety and security to oppose the 
"oppressor." These roles of thinker, 
propagandist, and activist define revolu- 
tionary leadership; they may be filled 
by one man (Lenin) or several (Jeffer- 
son, Paine, Washington). But because 
leadership is necessary for a revolution, 
many people mistakenly believe that it 
is sufficient to cause a revolution. This 
is tantamount to arguing that because 
oxygen is necessary for a fire, the 
presence of oxygen will cause a fire. 
Common views found in much of our 
counterinsurgency literature and atti- 
tudes are that Lenin, Ho, Fidel, or Mao 
and a small band of conspirators suc- 
ceeded in their efforts without genuine 
popular support; that ignorant people 
were duped; that a small faction com- 
pelled reluctant support through mass 
terror; or that a skilled propagandist 



70 



whipped a minor gripe into an un- 
warranted revolutionary issue. 

The commonly ignored point is that 
no revolution can succeed without at 
least the passive support of a sizable 
segment of the population, support 
which the revolutionaries can gain only 
through governmental indifference, 
stupidity or callousness. Considering the 
resource imbalance between an estab- 
lished government and a nascent revolu- 
tionary movement, the vulnerability of 
conspirators, the isolation of urban and 
rural guerrillas, and the inherent tenden- 
cies of people to obey the law and 
oppose radical change ("All Experience 
hath shown that mankind are more 
disposed to suffer, while Evils are suffer- 
able, than to right themselves by 
abolishing the Forms to which they are 
accustomed" 5 ), it is surprising that 
revolutions occur at all. Yet throughout 
history we have heard the weary refrain 
of privileged groups denying the reality 
and legitimacy of anger among the less 
fortunate. Plato and Cicero reported it, 
and it may be found prominently in the 
English Civil War debates and British 
colonial empire discussions, as well as in 
the literature defending American 
slavery. More recently we have heard 
the denial of any genuine problem, the 
same automatic response- "outside agi- 
tators "-to civil rights protests, student 
campus violence, urban ghetto riots, and 
military race relations conflicts. 

The myth of the outside agitator is 
an understandable and very human 
response, because those who are 
privileged cannot easily appreciate that 
many people really are terribly angry 
about the way the world is. It is 
difficult to see a situation as unjust 
unless one is the victim. Consequently, 
those who are privileged tend to deny 
that there is injustice and blame the 
turmoil on "outside agitators." Thus, in 
1857, George Fitzhugh wrote: 

We warn the North that every 

one of the leading abolitionists is 

agitating the negro slavery 



question merely as a means to 
attain their ulterior ends ... a sur- 
render to Socialism and Commu- 
nism-to no private property, no 
church, no law; to free love, free 
lands, free women and free 
children. 6 
That sad blindness of the South 's 

leading apologist for slavery existed, 

ironically, six years after Friedrich 

Engels had naively claimed (in the New 

York Daily Tribune): 

The times of that superstition 
which attributed revolutions to 
the ill will of a few agitators have 
long passed away. Everyone 
knows nowadays that wherever 
there is a revolutionary convul- 
sion, there must be some social 
want in the background which is 
prevented by outworn institutions 
from satisfying itself. 7 
If "outside agitators" are not blamed 

for causing revolutions, "ignorance" is. 

But as Ted Gurr has noted about this 

explanation: 

Man's resort to political vio- 
lence is in part unreasoning, but 
does not occur without reason. 
Ignorance is almost always among 
its causes: sometimes ignorance of 
its consequences by those who 
resort to it, more often ignorance 
by those who create and maintain 
the social conditions that inspire 

So what we see in the myth of the 
outside agitator is an attempt by the 
fortunate to explain away the anger of 
those crying "injustice!" by attributing 
it to external provocateurs and ignor- 
ance. Woodrow Wilson recognized and 
eloquently criticized such self-delusion: 
Men do not start revolutions in 
a sudden passion .... Revolutions 
do not spring up overnight. Revo- 
lutions come from the long sup- 
pression of the human spirit. 
Revolutions come because men 
know that they have rights and 
that they are disregarded. 9 



71 



Support of the people is the central 
theme of every revolutionary leader and 
theoretician. It is obvious from even the 
most casual perusal of revolutionary 
literature or history that the majority of 
the people must at least passively accept 
the revolutionaries' activities. Trotsky 
learned this in abortive Bolshevik at- 
tempts to "inspire" revolutions in 
Berlin, Munich, Hungary, Hamburg, Bul- 
garia and Estonia; "Permanent Revolu- 
tion" was abandoned. Lin Piao re- 
nounced Chinese initiation of revolution 
in other nations, saying: 

The liberation of the masses is 
accomplished by the masses them- 
selves- this is a basic principle of 
Marxism- Leninism. Revolution or 
people's war in any country is the 
business of the masses in that 
country and should be carried out 
primarily by their own efforts; 
there is no other way .... Foreign 
aid can play only a supplementary 
role. 10 

Che Guevara, Cuba's Trotsky who 
thought that with 50 men he could 
wage a successful revolution anywhere 
in Latin America, brilliantly diagnosed 
his own failure: 

Where a government has come 
into power through some popular 
vote, fraudulent or not, and main- 
tains at least an appearance of 
constitutional legality, the guer- 
rilla outbreak cannot be promoted 
since the possibilities of peaceful 
struggle have not yet been ex- 
hausted .... This is clearly seen 
by considering the case of bandit 
gangs. They have all the character- 
istics of a guerrilla army .... The 
only thing missing is support of 
the people; and, inevitably, those 
gangs are captured and extermi- 
nated. 11 

A third myth in our American ap- 
proach to revolution is the myth of the 
military victory. Because governments 
tend to deny the strength, legitimacy 
and even the existence of revolutionary 



movements, they postpone reaction 
until the situation has grown quite 
serious. Then military forces are as- 
signed to "solve the problem." Admiral 
Zumwalt told a 1974 Tufts University 
audience that as a rear admiral in 1 963 
he had written that "our national inter- 
est would not be served by becoming 
militarily involved" in Vietnam; his re- 
port, he said, was overruled by a Penta- 
gon civilian, Dr. Daniel Ellsberg. 12 If 
there is any hope at all for the military 
commander to accomplish his mission, 
he must remember the two preceding 
myths and seek a governmental response 
to the causes (the perceived injustices) 
even more than to the symptoms (vio- 
lence, political terrorism) of the revolu- 
tion. Military professional training incul- 
cates an aggressive, "can do," result- 
oriented attitude, with "results" almost 
inevitably thought of as quantifiable. 
Performance tends to be judged on 
things we can count: patrols, arrests, 
raids, "pacified hamlets," and casualties. 
Meaningless rules-of-thumb, like "10:1 
(or 15:1) is the magic troops: guerrillas 
ratio for victory," acquire holy auras. It 
is imperative that the commander and 
his subordinates appreciate how little 
these numbers may correlate with mis- 
sion accomplishment. No matter how 
good the numbers look, the revolution 
may be succeeding. "My feeling," said 
Marine Corps Commandant Wallace M. 
Greene in 1966, "is that you could kill 
every Vietcong and North Vietnamese 
in South Vietnam and still lose the 
war." 13 Strictly speaking, armed force 
is only a temporary shoring device 
which may briefly reestablish social 
order in a time of tumult; it offers the 
government one last chance to alleviate 
the grievances fueling the revolution. It 
is not, per se, a solution. 

The heart of the revolutionaries' 
claim is that they are right, not that 
they are stronger; a successful military 
occupation proves nothing against that 
conviction. If men feel unjustly treated, 
military patrols, curfews, and searches 



72 



(no matter how polite) will not change 
their opinion. In fact, such measures 
themselves lend plausibility to revo- 
lutionary propaganda that the govern- 
ment is hostile to and oppressive of 
the people's rights and welfare. Indeed, 
a prime ambition of many revolu- 
tionaries is to provoke a harsh military 
crackdown; it bolsters their claims that 
the unjust government will resist by 
force of arms any peaceful reform 
attempt, so a violent revolution is 
necessary. The paradigm of a military 
success/political catastrophe was 
General Massu's ruthless and complete 
annihilation of every known member 
of the Algerian FLN leadership by use 
of martial law, torture and counter- 
terrorism. Many Algerians consider 
Massu's military "success" in the 
Casbah the point when their revolution 
for independnece became irreversible 
because an amicable political settle- 
ment had been made impossible. Short 
of genocide, there is no military 
solution to a revolutionary situation 
because a revolution is a contest of 
ideas rather than arms, of justice and 
allegiance rather than firepower and 
body counts. We forget these points 
again at our own peril. 

The world's population is today 
approximately 4 billion people. Over- 
all, the growth rate is about 2 percent 
per annum. Each day, therefore, there 
are nearly 200,000 more human beings 
alive than there were the day before; 
every passing second adds two and a 
quarter persons. This is not births, but 
births minus deaths, or net growth. In 
the time it would take a nuclear task 
force to sail from the United States to 
the Persian Gulf- 2 weeks or so at a 
30-knot speed of advance -the world's 
population would have increased by 3 
million people. That is roughly equiva- 
lent to the population of Honduras, 
Ireland, Israel, Laos, Lebanon, New 
Zealand, Somalia or Uruguay added to 
the world during transit. If present 
population trends continue, there will 



be twice as many people on the planet 
in 2006 as there were in 1973. 

A second consideration: The wealth 
of the world is unevenly distributed. 
Fewer than a quarter of the world's 
inhabitants possess three-quarters of 
the riches. Two-thirds of the people 
live in "underdeveloped countries"; 
their children under the age of 15 
equal in number the entire populations 
of the world's developed nations. And 
the gap between rich and poor is open- 
ing, not closing. A decade ago our per 
capita income was nearly $3,000 while 
the World Bank classified 38 countries 
"very poor" with per capita incomes 
below $100. Discounting inflation 
"growth," our real per capita income is 
projected to reach $4,500 by the end 
of the century; the very poor nations 
will reach $160. 

Third in importance to population 
and the distribution of wealth is the 
continuing worldwide tendency to 
urbanize, Westernize, and communi- 
cate. By living in or near a large city, 
by viewing a movie or the village tele- 
vision, more and more people of the 
world are seeing glimpses of how 
others live and of what they them- 
selves do not have. This is much too 
meager to be called "education" about 
other lands-even "awareness" may 
overstate the case -but it is a glimpse, 
an image, an impression. 

If these trends of population 
growth, economics, and increased com- 
munication of images continue, there 
will be greater and greater known dis- 
parity between the world's rich and 
poor. "The wretched of the earth" (as 
Fanon called them), increasing in num- 
ber three times as fast as the world's 
comfortable people, more and more 
will be seeing glimpses of what they do 
not have. Inevitably, they will recog- 
nize the difference between what life is 
like for the fortunate and what it is 
like for them and their children. And 
they will call it unjust. 

So, if Aristotle was right that the 



73 



masses of men make revolution under 
the idea that they are unjustly treated, 
the world must seem to be on the 
verge of a profound revolution. The 
remainder of this century promises 
great political instability in the world, 
numerous periods of tension among 
nations about questions of justice, and 
frequent temptations to use naval or 
military force to achieve national 
objectives. Standing behind our 
nation's actions will be an implicit 
proclamation of what we, as a people, 
value. Particularly important, how the 
United States perceives and reacts to 
revolution will be largely shaped by, 
and will directly affect, those in 
uniform today. 

I think we should reexamine the 
prevalent belief that the world struggle 
is between communism and capitalism, 
with the Communists engaged in an 
international effort against capitalist 
societies. Not since Trotsky's failures 
has the Communist Party been truly 
international. Lenin abandoned Turkish 
and Persian Communists in courting 
both Ataturk and the Shah for border 
adjustments. The Korean and Indo- 
nesian parties were expelled from the 
Comintern in 1927 for unauthorized 
revolutionary efforts. Stalin directed the 
Chinese Communists to work with 
Chiang in 1925, which led to Chiang's 
liquidation of most of the CCP leader- 
ship. (Mao and Chou barely escaped 
"the great headhunt "-Mao's first wife 
did not.) In 1936 Stalin told the Span- 
ish Communists to forget revolution and 
to side with the Republicans. The Ger- 
man and Polish Communist parties were 
sacrificed for the 1939 Ribbentrop Pact. 
After the war, Stalin directed the 
French Communists to support de 
Gaulle, the Italians to accept Badoglio 
(despite a strong partisan base for revo- 
lution), Tito to agree to a restoration of 
the Yugoslav monarchy, and Mao to 
form a coalition with Chiang. The 
French Communists enraged Ho Chi 
Minh by opposing independence for 



Indochina during the 1946 elections. 

In fact, the Soviets did very little for 
the Chinese, Algerian, or Cuban revolu- 
tionaries during their wars. Greek Com- 
munists had to rely, uneasily, on Yugo- 
slav aid because Stalin gave them virtu- 
ally no help. The Cuban Communist 
Party had a comfortable modus vivendi 
with Batista, and when Castro called a 
1958 general strike, the Communist- 
controlled unions ignored it. Indeed, the 
Cuban Communist Party had no formal 
contact with Castro's army until a few 
months before Batista fled. 

Among non-Communist countries, 
the Soviet Union has given the greatest 
amounts of aid to Egypt, Syria, Iraq, 
India and Indonesia. In every one of 
these nations, the Communist Party was 
at one time or is now illegal and party 
members have been jailed or executed. 
Such prohibitions and prosecutions have 
not necessarily affected the flow of aid. 
Also, on the whole, Chinese and other 
Communist regimes have given relatively 
little aid to fellow Communist revolu- 
tionaries. Finally, Sino-Soviet border 
battles, support of opposing factions in 
Angola, and counteracting policies in 
the Indo-Pakistani conflict, are glaring 
contradictions to the idea of a "United 
Communist Movement." 

The upshot of all this is that "an 
international solidarity of Communists" 
simply does not exist. That concept fails 
to explain Soviet or Chinese foreign 
policy with any rational consistency. 
National self-interest, however, does 
adequately and coherently account for 
Soviet and Chinese decisions; greater 
attention should be paid to national 
priorities than to ideological purity. It 
was neither Dean Acheson nor Dean 
Rusk who warned, "The policy of 
Russia is changeless .... Its methods, its 
tactics, its maneuvers may change, but 
the polar star of its policy -world 
domination-is a fixed star." Karl Marx 
made that observation more than a 
century ago; 14 he was, obviously, not 
always wrong. 



74 



The Russians have noticed that of 
the seven nations which have become 
Communist without Red Army "help," 
three- China, Albania and Yugoslavia- 
have proved very unreliable "allies." 
(Vietnam, Laos and Cambodia are un- 
certain; only Cuba seems steady.) They 
are further annoyed by the fickleness of 
aid recipients such as Egypt, Ghana, 
Syria and Indonesia. The obvious con- 
clusion is that military conquest is the 
fail-proof method of gaining reliable 
control of a strategically important area. 
While land-bound border expansion in 
several directions still may be attractive 
to Soviet planners, the new vistas 
opened by a powerful Soviet Navy 
appear at least as dangerous to the West. 
If a Communist revolution were to 
develop in an area of great value to the 
Russians, they might attempt to land 
and sustain a support force-a contin- 
gency the U.S. Navy might be tasked 
with preventing. 15 Our particular con- 
cern, then, is not with Communist 
revolutions per se, but rather with 
Soviet military intervention and usurpa- 
tion of a revolution for her own na- 
tional interest. 

It also is important to note that our 
"counterinsurgency" attitude stems 
from a colossal feat of political legerde- 
main. At the 1961 World Communist 
Congress, Nikita Khrushchev unilater- 
ally declared that all "Third World 
people's wars" were in the interests of, 
and would be supported by, commu- 
nism. Two weeks later when John F. 
Kennedy became President, Khrush- 
chev's premise was swallowed whole: 
Roger Hilsman, Walt Rostow and Max- 
well Taylor launched us into the Green 
Beret Counterinsurgency era. (Years 
later, David Halberstam would write, 
very high Soviet officials told their 
American counterparts that it was all a 
misunderstanding, that the talk was 
aimed at the Chinese for propaganda 
and rhetoric purposes. 16 ) Misunder- 
standing or not, our reaction was a 
mistake, for it simply is not true that all 



Third World revolutionary activity is 
beneficial to the Russians or Chinese. 
Much of it reflects legitimate aspirations 
of people to achieve domestic justice by 
overthrowing colonial, racist or oli- 
garchical tyrannies. 

Our "counterinsurgency" attitude 
often has caused, tragically, what it was 
intended to prevent -the growth of anti- 
Americanism. "Neocolonialism," for 
instance, essentially is the accusation 
that American foreign policy is pre- 
dominantly guided by economic self- 
interest, that we support repressive 
regimes to protect our overseas invest- 
ments. The use of bribes and kickbacks 
by American corporations; diplomatic 
and military backing of dictatorships in 
return for base rights; CIA interference 
in other nations' political processes; the 
"de stabilization" of democratically 
chosen governments which threaten 
American investments; attempted "pre- 
judicial terminations" of various foreign 
leaders; police, army and intelligence 
"advisors" to help tyrannical but pro- 
Western governments frustrate popular 
uprisings; and covert or overt (as in 
Santo Domingo) American military in- 
terventions have been argued to be the 
rule rather than the exception in our 
foreign relations. While a free enterprise 
economic system may prove the best 
way to try to meet the world's burgeon- 
ing population needs, it would be fool- 
ish to deny that there has been eco- 
nomic exploitation of the lesser 
developed nations and that the central 
injustice in most Third World countries 
today is a grossly inequitable distribu- 
tion of wealth, for whatever reason. 
Revolutionary movements quite natu- 
rally will be directed against that in- 
justice; and, not uncommonly, U.S. 
overseas presence and investments will 
be labeled "colonialist." Further, the 
fact that they are living in misery while 
we experience unprecedented luxury 
strikes many of the world's poor as 
unjust. To them, free enterprise seems a 
license to exploit. But for us to call all 



75 



these revolutions "Communist insurgen- 
cies" is to make them what they need 
not be. 

Western political theory holds that 
the purpose of business is profit, the 
purpose of government is justice, and 
the two are not the same. Marxists deny 
this; they contend that government is 
merely an instrument of exploitative 
class oppression. Thus, Marx's grand 
challenge was his claim that the rich of 
the world can only try to become even 
richer. Capitalists may talk about peace, 
freedom and justice, he said -they may 
even throw the oppressed some meager 
sops to ease their own consciences-but 
the truth of their actions belies their 
protestations: they are economically 
enslaved to place property ahead of 
justice, gain ahead of rights, material 
goods ahead of human dignity. Accord- 
ing to Marx, all political decisions, 
democratic notions, lofty declarations 
of brotherhood, even religious and 
moral principles are subordinate to 
fundamental greed. The rich never will 
voluntarily give up their privileges, never 
peacefully consent to the reallocation of 
wealth which justice requires- this can 
be achieved only by violent revolution. 
Hence, the Manifesto concludes that 
Communist ends "can be attained 
only by the forcible overthrow of all 
existing social conditions. Let the 
ruling classes tremble at a Communist 
revolution. The proletarians have 
nothing to lose but their chains. They 
have a world to win. Workers of the 
world, unite!" 1 7 

The world's poor, growing in number 
and feeling unjustly treated, will surely 
hear Marx's claim. We, the world's rich 
growing richer, must answer it. What do 
we stand for? How will we use our 
power? What do Americans value- 
liberty, or our standard of living? What 
goals do our armed forces serve-justice, 
or profit and privilege? 

Because the Defense Department 
plays so significant a role in shaping our 
foreign policy, considerable astuteness is 



required of military leaders. Short-term 
expedience must be carefully weighed 
with attention to our long-term national 
values. Policies that imply Marx's eco- 
nomic determinism will have to be 
balanced against our heritage from 
Jefferson and Lincoln. While there al- 
ways have been evil men who would 
impose their Auschwitzes and Gulags 
worldwide unless deterred by brave men 
in arms, there also are other, more subtle, 
crimes against humanity -surfeit in a sea 
of want, ethnic and religious domina- 
tion, various political exclusions— which 
now are awakening revolutions. Those 
who feel such injustices will judge the 
United States by how our armed forces 
are used; so it will not be enough to 
oppose the Gulags and proclaim "free- 
dom and liberty" if we support oli- 
garchies, dictatorial juntas, and "pro- 
Western" tyrannies against revolution. 
But all too often, "counterinsurgency" 
has meant just that. 

Military leaders must be more atten- 
tive, then, to the causes of revolution, 
the limited relevance of military power 
to deal with an essentially political 
struggle, and the implications of Ameri- 
can support to governments facing revo- 
lution. They also should be aware that 
90 percent of mankind is non-White. 
Africans, Asians and Latin Americans - 
the whole Third World -form opinions 
about America by seeing how their 
distant relatives- Black, Oriental and 
Hispanic Americans-are treated, espe- 
cially in military units deployed over- 
seas. If our armed forces deter interna- 
tional aggression, if our foreign policy 
recognizes the legitimate grounds of 
many revolutions, and if our national 
experience demonstrates that the 
United States stands for justice and 
human respect as well as material pros- 
perity, then we may look hopefully at 
Karl Marx's prediction: "Russia has 
only one opponent: the explosive power 
of democratic ideas, that inborn urge of 
the human race in the direction of 
freedom." 18 



76 



NOTES 

1. Karl Marx, A Contribution to the Critique of Political Economy; reprinted in Social and 
Political Philosophy, edited by J. Somerville and R.E. Santoni (Garden City, N.Y.: Doubleday 
and Co., 1963), p. 379. 

2. Brian Crozier, The Rebels (Boston: Beacon Press, 1960), pp. 15, 16. 

3. Politics 1303b5; in The Basic Works of Aristotle, edited by Richard McKeon (New 
York: Random House, 1941), p. 1237. 

4. John Adams, letter to Hezekiah Niles, 13 February 1818; in The Works of John Adams 
(Boston: Little, Brown and Co., 1856), vol. X, pp. 282, 283. 

5. The Declaration of Independence. 

6. George Fitzhugh; quoted in Charles A. Madison, Critics and Crusaders: a Century of 
American Protest (New York: Ungar, 1959), p. 5. 

7. Friedrich Engels, The New York Daily Tribune, 25 October 1851; reprinted in Friedrich 
Engels, Germany: Revolution and Counter- Revolution (New York: International Publishers, 
1933), p. 9. 

8. Ted R. Gurr, Why Men Rebel (Princeton: Princeton University Press, 1970), p. 359. 

9. Woodrow Wilson; quoted in C.L. Sulzberger, Unfinished Revolution: America and The 
Third World (New York: Atheneum, 1965), p. 5. 

10. Lin Piao, Long Live the Victory of the People's War (1965); reprinted in full, Samuel B. 
Griffith, Brigadier General, USMC (Ret.), Peking and People's War (New York: Praeger, 1966), 
pp. 85, 88. 

11. Che Guevara, Guerrilla Warfare (New York: Vintage Books, 1969), pp. 2, 4. 

12. Elmo Zumwalt, Admiral, USN; quoted in The New York Times, 19 April 1974, p. 42:2. 

13. Wallace M. Greene, General, USMC; quoted in Arthur M. Schlesinger, Jr., The Bitter 
Heritage— Vietnam and American Democracy 1941-1966 (Boston: Houghton Mifflin, 1967), p. 
48. 

14. Karl Marx, "Poland's European Mission (1867)"; reprinted in Karl Marx and Friedrich 
Engels, The Russian Menace to Europe, edited by P. Blackstock and B. Hoselitz (Glencoe, 111.: 
The Free Press, 1952), p. 106. 

15. This was originally written before the Havana- Angola airlift occurred. The logistic 
limitations of that tactic (e.g., no bulk cargoes such as POL, and requirements of secure airspace 
and good airfields) are familiar to military planners and would have been obvious had a 
functioning Angolan government existed or had Western response been more vigorous. The 
movement of Soviet naval amphibious units along Africa's west coast suggested an appreciation 
of airlift vulnerability. 

16. David Halberstam, The Best and The Brightest (Greenwich, Conn.: Fawcett Publica- 
tions, 1973), p. 152. 

17. Karl Marx and Friedrich Engels, final paragraph of The Communist Manifesto. 

18. Karl Marx; quoted in The Reader's Digest, June 1964, p. 231. 



t 



77 



COLLECTIVE INTERVENTION 



AND THE LAW OF THE CHARTER 



William 0. Miller 



I-INTRODUCTION 

The subjects of "intervention" and 
its corollary of "nonintervention" are, 
without doubt, two of the most contro- 
versial in the literature of international 
law. It is even difficult to find any 
substantial agreement among interna- 
tional law publicists as to the meaning 
of the terms. The definition of "inter- 
vention" which seems to command the 
most agreement, however, has been 
phrased as follows: ". . . any act of 
interference by one state in the affairs 
of another; but in a more special sense it 
means dictatorial interference in the 
domestic or foreign affairs of another 
state which impairs that state's indepen- 
dence." The doctrine of "noninterven- 
tion," being inextricably intertwined 
with what at best must be described as 
the ambiguous concept of "interven- 
tion," nevertheless has been accepted 
almost universally as a proper guideline 
for the conduct of slates. It found its 



most inclusive definition and its most 
comprehensive endorsement in General 
Assembly Resolution Number 2131 
(XX), as follows: 

No State has the right to inter- 
vene, directly or indirectly, for 
any reason whatever, in the in- 
ternal or external affairs of any 
other State. Consequently, armed 
intervention and all other forms 
of interference or attempted 
threats against the personality of 
the State or against its political, 
economic and cultural elements 
are condemned. 

It is the purpose of the discussion 
which follows to develop the proposi- 
tion that these broad pronouncements, 
while appearing to proscribe the "dicta- 
torial interference in the affairs of a 
stale," do not do so at all, but rather 
serve only to transfer competence to 
exercise this "dictatorial interference" 



78 



Irotu individual stales to collectivities of 

stales acting cither t liroujjh or under the 
auspices ot the United Nations. This 
proposition has as its basic conception 
that intervention, as defined above and 

subject to the concepts of necessity and 
proportionality, has always been recog- 
nized as a lawful exercise of the in- 
disputable international right of sanc- 
tion, usable to enforce an international 
legal right, and that intervention, as a 
sanction, lias neither been restricted nor 
proscribed; that only the competence to 
apply it has changed. It will be further 
demonstrated that this very process of 
multilateralizing the right of sanction 
has resulted in the development and use 
by the Great Powers of regional collec- 
tivities through which they seek to 
exercise the right of sanction for politi- 
cal rather than legal purposes. 

In developing this thesis, the concept 
of intervention as a "dictatorial inter- 
ference in the affairs of a slate" will be 
accepted, specifically, however, with the 
limitation that intervention is taken 
only for the purpose of compelling a 
state to satisfy its international obliga- 
tions. Thus, intervention will be dis- 
cussed as the process through which the 
international community seeks to pre- 
vent an international delict from devel- 
oping into an international dispute or 
through which it otherwise seeks to 
redress an international wrong. Divorced 
from this discussion will be those acts of 
interference by a stale in the affairs of 
another state which do not have either 
an actual or a claimed antecedent inter- 
national delict. Such acts have uni- 
versally been considered as unlawful and 
prohibited by customary international 
law unless they were based on an 
existing treaty right permitting such 
interference. 

II-DEVELOPMENT OF 

THE SANCTION: 
A HISTORICAL SKETCH 

I here is certainly no doubt that the 
traditional international law failed to 



provide any workable system through 
which a stale, utilizing centralized pro- 
cedures, could seek redress for a wron«r 
done to it by another stale. This was a 
horizontal system in which all subjects 
were theoretically equal and in which 
there were no established procedures to 
seek redress through community sanc- 
tions. The only genuine restrictions on 
the acts of a state depended on con- 
siderations of reciprocity or on the 
power relationships between an of- 
fending and an offended state. Because 
of the primitive nature of this system 
and because there was a necessity to 
provide some procedure beyond that of 
ineffective reciprocal and self-imposed 
restraints for the enforcement of inter- 
national obligations, there developed 
the practice of self-help. Much like the 
situation which exists in any primitive 
society, it was necessary for each indi- 
vidual- i.e., each state— to rely on its 
own ability, its own strength, to seek 
redress for wrongs done to it. Self-help 
has thus ". . . been universally recog- 
nized as a means of enforcement . . . [of 
international law, i.e.,] ... as a sanc- 
tion.' 1 There were basically two types 
of forcible self-help available. The first 
was war and the second was the doc- 
trine of reprisals. Intervention, as de- 
fined above, arose as a form of reprisal. 
It was nothing more nor less than a 
manifestation of 'The dependence of 
law in a primitive community upon 
various techniques of self-help.' Force- 
ful interventions in the form of reprisals 
therefore were recognized as lawful, 
circumscribed only by the requirements 
of necessity and proportionality. The 
legitimacy of this type of forcible self- 
help was made clear in Hague Conven- 
tion Number II of 1907 when, for the 
first time, it was agreed ". . . not to have 
recourse to force for the recovery of 
contract debts due from one Stale to 
the nationals of another, but in that 
case alone/ Thus, it has been said 
that, ". . . with only one small caveat, 
the great powers immediately before 



79 



World War I reaffirmed the righl of 
forcible self-help." 

The Covenant of the League of 
Nations was the first break in this 
traditional philosophy. The adherents to 
the covenant agreed to "respect the 
territorial integrity and existing political 
independence" of other members and 
to submit to arbitration or to inquiry by 
the Council of the League of Nations 
those disputes of an international nature 
which could not be settled by diplo- 
macy. Following shortly on the heels 
of the covenant came the Pact of Paris, 
or the Kellogg-Briand Pad, in which the 
parlies agreed that "settlement or solu- 
tion of all disputes or conflicts of 
whatever nature or of whatever origin 
they may be, which may arise among 
them shall never be sought except by 
pacific means. 1 ' At about this same 
time the Latin American Republics 
began to vorce, in concert, strenuous 
opposition to the intervention policy 
which the United States had followed 
extensively in the Western Hemisphere 
since the mid-lBOO's. In Rio de Janeiro 
in J 927 the Inter-American Commission 
of Jurists recommended to the forth- 
coming Conference of Havana that it 
consider adopting the principle that 
"No nation has a right to interfere in 
the internal or foreign affairs of an 
American Republic against the will of 
that Republic." 10 While U.S. objections 
prevented adoption of this principle in 
J-928; 11 it was adopted in 1933 with 
U.S. reservations 2 and finally in 
Buenos Aires in 1936 without U.S. 
reservations. In article I of the Addi- 
tional Protocol Relative to Non-Inter- 
vention, adopted by the American 
states at Buenos Aires, the parties de- 
clared as "inadmissible the intervention 
of any one of them, directly or in- 
directly, and for whatever reason, in the 
internal or external affairs of any other 
of the Parlies.' 1 This principle was re- 
pealed and broadened in the Declara- 
tion of Principles of Inter- American 



Solidarity and Cooperation in this 

language: 

(a) Intervention by one State 
in the internal or external affairs 
of another State is condemned; 

(h) Forcible collection of 
pecuniary debts is illegal; and 

(c) Any difference or dispute 
between the American nations, 
whatever its nature or origin, shall 
be settled by the methods of 
conciliation, or full arbitration, or 
through the operation of inter- 
national justice. 4 

By the time of the Mexico City 
Conference of 1945, this principle had 
become ingrained in inter-American law, 
and the Act of Chapullcpec simply 
reiterated its "condemnation of inter- 
vention in the internal or external af- 
fairs of another.'' Thus, when the 
members of the United Nations met in 
San Francisco in 1945 to draft the 
Charter of the United Nations, the 
unilateral resort to force, even as a 
means of self help, had received substan- 
tial international condemnation. 

The results of the San Francisco 
Conference reflect the same revulsion to 
the unilateral use of force as had the 
various treaties referred to above. Im- 
pressing a determination to "save suc- 
ceeding generations from the scourge of 
war, which twice in our lifetime has 
brought untold sorrow to mankind," 16 
and a determination to "ensure . . . that 
armed force shall not be used, save in 
the common interest, 11 7 the writers of 
the charter stated that it was part of 
their purpose: 

To maintain international peace 
and security, and to thai end: lo 
lake effective collective measures 
for the prevention and removal of 
threats to the peace . . . and lo 



80 



bring about by peaceful means, 

and in conformity with the prin- 
ciples of justice and international 
law, adjustment or settlement of 
international disputes or situa- 
tions which might lead to a breach 
of the peace. 

In support of this and other staled 
purposes, the members of the United 
Nations pledged themselves to "settle 
their international disputes by peaceful 
means in such a manner that interna- 
tional peace and security, and justice, 
are not endangered, " and to "refrain 
in their international relations from the 
threat or use of force against the terri- 
torial integrity or political independence 
of any state, or in any other manner 
inconsistent with the Purposes of the 
United Nations." 20 

The significant point here is that 
while the charter in article 2 (4) con- 
tains a general prohibition of the uni- 
lateral use of force in international 
relations, it promises an "effective col- 
lective" substitute. Thus, in those situa- 
tions where an international dispute 
cannot be settled by peaceful means 
between the parties, the charter 
promises the collective efforts of the 
organized international community to 
take such measures as are necessary to 
prevent or remove any threat to the 
peace which may or does result. The 
charter would therefore no longer per- 
mit a state to take the law in its own 
hands and to seek redress by force. 
Given the law of the charter, the primi- 
tive international law of the jungle 
would be replaced by a civilized deter- 
mination of right and wrong, of delict 
and redress, and of rights and responsi- 
bilities. Whether or not the charter has 
constructed collective machinery ade- 
quate to this purpose, however, is quite 
another question and, it would seem, a 
most crucial one. For if the promised 
substitute for unilateral action is not 
forthcoming, states could hardly be 
expected to refrain from developing 



other procedures and perhaps from even 
falling back to their prior practice of 
unilateral forcible self-help, "Clearly, a 
law which prohibits resort to force," or 
stated otherwise, which prohibits the 
resort to unilateral self-help, "without 
providing a legitimate claimant with 
adequate means of obtaining redress, 
contains the seeds of trouble." It has 
even been argued that "|IJf the collec- 
tive organization, through a fault in its 
organizing instrument, leaves a gap 
where the use of force is necessary but 
the collective organization is impotent 
to act, then the legal right to use force 
must, in such instance, revert back to 
the members/ 2 It is abundantly clear 
from current international practice that 
this process has long since begun. States 
have sought, and are seeking, substitutes 
for the promised universal actions which 
seldom materialize. The impotence of 
the international community as a whole 
has led to the development of smaller 
collectivities which, while demon- 
strating a capacity to act, have at the 
same time shown that the compatibility 
of their actions with the more compre- 
hensive provisions of the charter is 
sometimes open to serious question. 

III-CHARTER REGULATION OF 
THE USE OF FORCE 

General Provisions. As noted above, 
article 2 (4) of the charier contains a 
general prohibition of the ill real or use 
of force "against the territorial integrity 
or political independence of any 
state . . .." Only two exceptions to this 
general prohibition are provided: (1) 
Preventive or enforcement actions taken 
by or under the auspices of the United 
Nations, provided for in article 42 of 
the charter; and (2) individual or collec- 
tive self-defense, provided for in article 
51. All other resorts to the use of force 
in international relations "fall into I lie 
category of international delicls and 
are themselves violations of interna- 
tional law. 1 This reflects the charter's 



81 



purpose to "eliminate the threat or use 
of force whether it he lawful or unlaw- 
ful under general international law' 
except in legitimate self-defense or as a 
part of the collective sanctioning 
process. 2 There should be little doubt, 
therefore, that unilateral, forcible self- 
help as an acceptable sanction in inter- 
national law has been prohibited. 

There are, then, only two permissible 
uses of armed force under the charter. 
The first of these— the collective pro- 
cesses by or under the auspices of the 
United Nations— are provided essentially 
through powers granted to the Security 
Council in chapter VII of the charter. 
Article 39 invests the Security Council 
with the authority and responsibility to 
"determine the existence of any threat 
to the peace, breach of the peace, or act 
of aggression and . . . [to] . . . make 
recommendations, or . . . [to] . . . de- 
cide what measures shall be taken to 
maintain or restore international peace 
and security.'" Article 42 provides for 
the use of armed force to accomplish 
this purpose if the peaceful, nonforceful 
measures of article 41 are considered 
inadequate; and article 48 provides that 
such action is to be carried out, subject 
to the determination of the Security 
Council, by "Members of the United 
Nations directly and through their 
actions in the appropriate international 
agencies of which they are members." 
Article 50 makes it clear that this 
"preventive or enforcement action" is 
to be taken against states. While this 
may seem an unnecessary observation, it 
is nevertheless a crucial one. By en- 
dorsing these principles, states are seen 
to have relinquished a portion of their 
sovereignty and to have consented, in a 
proper case, to subject themselves to 
forcible but lawful pressures from with- 
out. This is but a necessary corollary to 
Professor Jessup's argument 4 that the 
prohibition of the use of force in article 
2(4) is a limitation on the traditional 
concept of sovereignty which permitted 
a state to resort to force to redress a 



wrong done to it. If this aspect of 
sovereignty is now limited by interna- 
tional law to an offended slate, it would 
necessarily follow, if any sort of effec- 
tive system is to be maintained, that any 
previous right of an offending state to 
be immune from the application of 
force must likewise be limited. The 
importance of these limitations lies in 
the fact that they effect a significant 
modification of the nonintervention 
principle as previously expressed. Inter- 
vention is now specifically legitimatized 
when taken by or under the auspices of 
the international community as a whole. 
Intervention, then, at least in the terms 
in which it was defined above, is specifi- 
cally sanctioned by the charter. 

It must be said, therefore, that the 
charter seeks to make significant inroads 
on the traditional concept of sover- 
eignty as an "absolute, uncontrolled 
state will, ultimately free to resort to 
the final arbitrament of war," and as a 
tradition under which states "do not 
readily yield to concepts of interna- 
tional supervision." The charter seeks 
to remove the "quicksand on which the 
foundations of traditional law are 
built" 8 and to substitute in its stead the 
firmer base of collective supervision and 
collective action. 

Provisions Relating to Regional Or- 
ganizations. As was noted above, chap- 
ter VII of the charter assigns to the 
Security Council the primary responsi- 
bility for the maintenance of interna- 
tional peace and security and the pri- 
mary authority to take such action and 
to provide such sanctions as may be 
necessary to that end. 

An important part of the machinery 
through which these actions may be 
accomplished are the regional arrange- 
ments recognized in chapter VIII. The 
part that such organizations could and 
should play in the collective structure 
was debated at length both at Dumbar- 
ton Oaks and at the San Francisco 
Conference. The result was twofold— 



82 



the recognition in article 51 of the right 
of collective self-defense and the inclu- 
sion of articles ~>2, 53, and 54 to 
provide a legal framework for recon- 
ciling th*' actions of regional organiza- 
tions willi those ol the United Nations. 

These latter provisions have been 
criticized as a compromise of the con- 
cept of universalism and as resulting in 
an ambiguous legal rationale concerning 
the relative jurisdictional competences 
of the United Nations on the one hand 
and a regional organization on the other 
and concerning just what measures or 
actions are within the authority of a 
regional grouping. 

It is true that the recognition of the 
"inherent right of individual or collec- 
tive self-defense" in article 51 did repre- 
sent a concession to those slates— par- 
ticularly the Latin American Slates— 
which desired to see a measure of 
regional autonomy in their respective 
groupings. This was considered neces- 
sary, particularly insofar as self-defen- 
sive actions were concerned, in order to 
prevent a possible Great Power veto in 
the Security Council from precluding 
essential, defensive actions. Article 

51, then, was specifically intended to 
permit a regional grouping or an indi- 
vidual state to lake necessary measures 
in self-defense and to continue such 
actions until "the Security Council has 
taken measures necessary to maintain 
international peace and security. " 

The ambiguity arises when this right 
of a regional organization to use force in 
self-defense is compared with the char- 
ter provisions relating to disputes which 
it may attempt to settle and "measures 1 ' 
or "actions" which it may take. Article 

52, while recognizing the primary re- 
sponsibility of the Security Council, 
charges members of the United Nations 
who arc also members of a regional 
organization with making "every effort 
to achieve pacific settlement of local 
dispute's through such regional agen- 
cies . . . before referring them to the 
Security Council. " And article 53 



authorizes the Security Council to uti- 
lize such arrangements for "enforce- 
ment actions under its authority. "With 

one exception not here pertinent, 
however, prohibition is made of any 
enforcement action "without the autho- 
rization of the Security Council.' 

These provisions have given rise to 
repeated controversy between those 
states seeking a measure of regional 
competency in settling regional disputes 
and those seeking to maintain the pri- 
macy of the central organization. The 
controversy has been twofold and may 
be expressed as follows: (I) Is there a 
jurisdictional conflict between the Se- 
curity Council and a given regional 
organization; and (2) What actions, if 
any, may a regional organization take 
without prior Security Council authori- 
zation? 

The jurisdictional problem. This 
portion of the controversy concerns 
itself with which body, the Security 
Council or a regional organization, has 
the competence to deal with a particular 
dispute. Does either body possess an 
exclusive right to hear and determine 
the dispute? Or, is there a shared com- 
petence; and, if so, docs either body 
have a primary right to proceed? 

Tin' language of the charter would 
appear to resolve clearly this issue in 
favor of a shared competence but with a 
recognized primacy in the Security 
Council. Article 52(2) does counsel 
members of regional organizations to 
make every effort to settle their dis- 
putes within that regional framework 
"before referring them to the Security 
Council. " Article 52(4), however, makes 
it clear that this "in no way impairs" 
the right of the Security Council to act 
in the case or the right of any member 
to request Security Council action. 

The Guatemala Case. This issue 
was first debated before the Security 
Council in June 1^54. when Guatemala 
requested that the Security Council 



83 



convene to consider its allegations of 
aggression against Nicaragua and Hon- 
duras, so that it could take the neces- 
sary measures "to prevent the disrup- 
tion of peace and international security 
in this part of Central America." The 
Governments of both Nicaragua and 
Honduras expressed surprise that this 
matter should have been brought before 
the Security Council when there were 
available the processes of the Organiza- 
tion of American States which, they 
said, were established to hear inter- 
American differences. 17 Brazil sub- 
mitted a draft resolution by which the 
Security Council would have referred 
the matter to the OAS for its urgent 
consideration. The debates which fol- 
lowed saw a wide divergence of opinion 
as to the course which the Security 
Council was obliged to follow. The most 
restrictive view was presented by the 
delegate from Colombia, as follows: 

1 should like to make it quite clear 
that the provisions of Article 52, 
paragraph 2, of the United Na- 
tions Charter impose on all Mem- 
bers the duty to apply first to the 
regional organization, which is of 
necessity the court of first appeal. 
This is not a right which can be 
renounced because the States 
which signed the Charter under- 
took this obligation. 18 

On the other hand, the representative of 
the Soviet Union argued that it was "the 
Council's duty to take responsibility 
and to take urgent steps to end the 
aggression," 19 and he announced that 
he would exercise the Soviet Union's 
right of veto on any resolution which 
referred the matter to the OAS for 
action. 

Most of the remaining members of 
the Security Council clearly favored 
reference of the mailer to the OAS, 
although it is obvious that this was nol 
considered as relinquishing Security 
Council jurisdiction in the matter. The 



resolution which was finally put to a 
vote called for immediate termination 
of acts likely to cause further bloodshed 
and would have referred the complaint 
to the OAS for consideration. True to 
his threat, however, the representative 
of the Soviet Union cast a negative vote 
and prevented the resolution from 
carrying. A substitute resolution was 
quickly passed. It read as follows: 

The Security Council. 

Having considered on an urgent 
basis the communication of the 
Government of Guatemala to the 
President of the Security Council, 

Calls for the immediate termina- 
tion of any action likely to cause 
further bloodshed and requests all 
Members of the United Nations to 
abstain, in the spirit of the Char- 
ter, from rendering any assistance 
to any such action. 

The matter was again raised on 25 
June 1954 at the 676th meeting of the 
Security Council, when a debate took 
place concerning whether or not the 
Council should again place the Guate- 
malan complaint on its agenda. These 
debates saw the representative of Brazil, 
once again, contending that the OAS 
was the proper organization to settle 
this dispute. Since the Inter-American 
Peace Committee was already acting in 
the matter, he was able to cite its 
activities in support of his arguments. 2 
Colombia, citing pertinent provisions of 
the OAS Charter, reiterated its argu- 
ment that the regional machinery of the 
OAS must be utilized before Security 
Council competence is invoked, since to 
do otherwise, he said, would "imply a 
disauthorization of the American 
agency" to which Colombia could not- 
agree. " The Soviet Union was adamant 
in its insistence that the matter must be 
placed on the agenda of the Security 
Council. It pointed out that the 



84 



Security Council had already acted in 
the caae by its resolution adopted in the 

(>7.">th meeting, and argued that now it 
was time that the Security Council 

"adopted measures to ensure the fullill- 
ent of its decision. Ambassador 



in 



Lodge of the United States asserted that 
the Security Council was faced for the 
first time with the problem of trans- 
lating into reality the charter formula 
providing for a balance between the 
principle of "universality, the effect of 
which was qualified by the veto power, 
and regional arrangements.' 1 The sub- 
stance of his arguments was as follows: 

The United States does not deny 
the propriety of this danger to the 
peace in Guatemala being brought 
to the attention of the Security 
Council in accordance with Ar- 
ticle 35 of the Charter. That has 
been done . . .. The United States 
is, however, both legally and as a 
matter of honour, bound by its 
undertakings contained in Article 
52, paragraph 2 of the Charter of 
the United Nations and in Article 
20 of the Charter of the Organiza- 
tion of American States, to 
oppose consideration by the Se- 
curity Council of this Guatemalan 
dispute until the matter has first 
been dealt with by the Organiza- 
tion of American States which 
through its regularly constituted 
agencies, is dealing actively with 
the problem now . . .. We are con- 
vinced that failure of the Security 
Council to observe the restraints 
which were spelled out in the 
Charter will be a grave blow to 
the entire system of international 
peace and security which the 
United Nations was designed to 
achieve. 2 6 

The vote of the Security Council not 
to place the Guatemalan complaint in 
its agenda ' has been interpreted as a 
victory for the United States, since it 



was thus enabled In handle the matter 
in the councils of the OAS where it was 
the dominant power unrestricted by the 
Soviet veto. While there may be some 
considerable justification for this argu- 
ment, it still remains a basic fact, 
notwithstanding the positions advanced 
during the debates, that the failure of 
the Security Council to take direct 
action in the case cannot be properly 
construed as a determination that its 
competence does not exist at least 
concurrently with that of a regional 
organization. To the contrary, the 
Security Council did act in the case by 
passing the resolution at its 675th meet- 
ing. The refusal to take further action 
only reflected a preference for settle- 
ment of this particular dispute at the 
regional level, where it appeared that 
the regional agency was capable of 
taking the necessary action. 

The handling of this dispute gives rise 
to certain initial observations con- 
cerning the relative competences of the 
Security Council and a regional arrange- 
ment. These are: 

The provisions of article 
52(4) to the effect that the competence 
of a regional organization to make every 
effort to settle local disputes within the 
machinery of their regional grouping "in 
no way impairs the authority of the 
Security Council' 1 to be seized of the 
same matter remain valid; 

Regional organizations will 
be permitted to act in accordance with 
the authority granted to them where 
they demonstrate a practical ability to 
take effective action; and that therefore, 

It must be said that when 
first faced with the jurisdictional issue, 
the Security Council acted so as to 
endorse the principle that both they and 
a regional organization share compe- 
tence—or possess concurrent jurisdic- 
tion and that the primary opportunity 
to act would probably be accorded the 
regional grouping in those cases where it 



85 



demonstrated an ability to act effec- 
tively. 

The Cuban Case. This entire 
controversy was again raised before the 
Security Council in July I960, when the 
Government of Cuba requested urgent 
consideration of "the grave situation 
which now exists ... as a consequence 
of repeated threats, harassments, in- 
trigues, reprisals and aggressive acts to 
which . . . [Cuba] . . . has been sub- 
jected ,, by the United States. The 
Cuban representative began his presenta- 
tion to the Council with this statement: 

The right of any State which is a 
Member of the United Nations to 
have recourse to the Security 
Council cannot be questioned. 
The regional agencies do not take 
precedence over the obligations of 
the Charter .... It is obvious that 
regional arrangements made under 
the terms of Article 52 of the 
Charter entail rights which are of 
an optional rather than an exclu- 
sive character, and that Member 
States may exercise whichever of 
those rights they choose. 

The representative of the United States 
replied that this matter was currently 
under consideration by the Council of 
the Organization of American States 
and that the "Security Council should 
take no action . . . [until] . . . discus- 
sions have taken place ..." in that 
Organization. He disclaimed any insis- 
tence, however, that this reflected in 
any way on the competence of the 
Security Council to hear the Cuban 
complaint. He stated: 

Let me say that it is not a 
question of which is greater or 
which is less -the Organization of 
American Stales or Ihe United 
Nations. The point is that it 
makes sense- and the ('barter so 
indicates- to go to the regional 



organization first and to the 
United Nations as a place of last 
resort. There is no question, of 
course, of replacing the United 
Nations. 32 

This same rationale clearly motivated 
Argentina and Ecuador to submit a 
draft resolution, * later adopted, under 
which the Security Council took note of 
the situation existing between Cuba and 
the United States and adjourned its 
consideration of the matter pending an 
invitation to the OAS to assist in re- 
solving the dispute and to report its 
activities. The positions of the various 
members of the Security Council on this 
draft resolution reflected a three-way 
split in opinions on the jurisdictional 
issue. One extreme was represented by 
the United Kingdom 4 and France 3 
who contended that Cuba had a legal 
obligation under the charter and under 
the Charter of the Organization of 
American States to seek resolution of 
the matter in the regional agency prior 
to requesting action by the Security 
Council. On the other extreme were the 
Soviet Union and Poland who argued 
that the Security Council had primary 
jurisdiction in the matter and that it 
would be illegal to refer the matter to 
the OAS. The great majority of the 
views expressed, however, were in ac- 
cord with those of the sponsors of the 
resolution- that the resolution found "a 
formula, which while taking account of 
the fact that proceedings are under way 
in a regional agency, does not bar the 
parties concerned from access to the 
United Nations . . .." 37 The language of 
the operative portions of the resolution 
compel this understanding of the Se- 
curity Council's action, and it clearly 
supports the initial observations drawn 
above from the Guatemalan case. The 
Security Council, in handling the Cuban 
complaint, was asserting its ultimate 
competence but was deferring to the 
practical and, it was hoped, effective 
machinery of the regional grouping. 



86 



In late October l ( H)(), Cuba renewed 
its complaint, this time in the General 

Vsscmbry. In spite of the fact that by 
January 1 ( H)1 Cuba was contending that 
its invasion was imminent, the General 
Assembly had taken no action on the 
case. Cuba, thus, on 4 January 1961, 
moved again to seek Security Council 
consideration of the matter. 39 Al- 
though the Cuban complaints were 
debated at length, 40 the Security Coun- 
cil did not take any official action on 
them. Thus, despite the fact that by late 
April 1961 the abortive Bay of Pigs 
invasion had actually occurred, the 
Cuban complaints still were left to the 
Organization of American States. This 
was recognized in a resolution later 
adopted by the General Assembly's 
First Committee on 21 April 1961. 41 
Although the Plenary Session of the 
General Assembly, in later acting on this 
First Committee Resolution, refused by 
a substantial majority to specifically 
refer to the OAS, this may not be said 
to diminish the significance of the prior 
actions of the Security Council in re- 
ferring the matter to that organization. 

Conclusion. No case, subse- 
quent to the two above discussed, lias 
arisen in which the jurisdiction relation- 
ships of the Security Council versus a 
regional organization have become a 
significant issue. Although there were 
undertones of this controversy in the 
1963 dispute between the Dominican 
Republic and Haiti and in the 1964 
complaint by Panama against the United 
States, both controversies found the 
parties mutually willing to utilize the 
procedures of the OAS. 2 

Notwithstanding the contrary con- 
tentions made by some during the 
above-noted debates, it is concluded 
that the actions of the Security Council 
do not substantiate the argument that a 
genuine issue concerning the respective 
jurisdictions of the Security Council and 
a regional organization was ever joined. 
While some stales did argue to that 



effect, the great majority of states 
clearly conceded concurrent jurisdiction 
in both bodies, but with primary right 
to proceed in the Security Council. The 
issue was a political and a practical 
one— essentially, should the Security 
Council give practical substance, in a 
proper case, to the charter provisions 
relating to its use of regional organiza- 
tions for the settlement of disputes 
which were of purely regional charac- 
ter? This question was answered with a 
simple "yes.' 1 The answer did not mean, 
nor was it ever intended to mean, that a 
party to a dispute could be foreclosed 
from seeking Security Council assistance 
without first exhausting its remedies in 
the subordinate organization. Notwith- 
standing this conclusion, however, it 
must be conceded that the great ma- 
jority of members of the Security Coun- 
cil did, in fact, make considerable con- 
cessions to the proposition that a 
regional organization is a better forum 
for settling disputes than is the Security 
Council. The search for alternate means 
of settlement— i.e., means other than the 
veto-afflicted Security Council— was 
thus well on its way. 

The "enforcement action" issue. 

The second major controversy between 
the "rcgionalists" and the "univer- 
salisls 1 ' is concerned with the nature of 
the action which can be taken by a 
regional organization with respect to a 
dispute of which it is properly seized. 
Phis arises from the interaction of the 
provisions of article 52(2) and article 
53(1). The first of these charges the 
regional organization with making 
"every effort to achieve pacific settle- 
ment of local disputes, " while the latter 
specifically admonishes that ". . . no en- 
forcement action may be taken under 
regional arrangements . . . without the 
authorization of the Security Council. 

The question thus arises as to what 
are these "enforcement actions" which 
are prohibited to a regional organization 
without prior Security Council 



87 



approval, and what other actions are left 
to its initial competence? 

Neither reference to the records of 
the San Francisco Conference nor to 
other background papers to the char- 
ter 43 provide any real assistance in 
discovering the meaning of the term 
"enforcement action.' 1 Reference to the 
charter itself also fails to provide any 
direct assistance. The term appears only 
four times in the charter- alone in arti- 
cle 45, twice, and in the phrase "preven- 
tive and enforcement action" in article 
5. The term "enforcement measures," 
however, appears twice in the charter- 
alone in article 2(7), and in the phrase 
"preventive and enforcement measures'" 
in article 50. 

No key is readily apparent to the 
reasons behind this different phrasing. 
There is no specific indication in either 
the charier itself or in the background 
debates as to why the drafters used 
"enforcement action 1 ' in one article 
alone, in conjunction with "preventive 
action 11 in another, and why two other 
articles speak in terms of preventive or 
enforcement measures. One would cer- 
tainly assume, however, that if the 
drafters of the charter meant the same 
thing in each of these articles thai they 
would have used the same terminology. 
It would seem clear, therefore, thai I he 
term "enforcement action" as used in 
article 53 means something different 
than the "preventive . . . action 11 or the 
"preventive and enforcement measures 11 
used elsewhere. 

The answer to a part of this confu- 
sion very probably lies in the differenti- 
ation set forth in articles 41 and 42 of 
the types of processes which can be 
undertaken by the Security Council. 
Article 41 provides for "measures not 
involving the use of armed force 11 to be 
utilized to effect Security Council deci- 
sions. Article 42, on the other hand, 
pennils "action by air. sea and land 
forces if the measures of article II are 
not considered adequate. Hence, it 
would logically follow that the term 



"action 11 should be interpreted as ac- 
companied by the use of armed force 
while the term "measures 11 would not. 
While this does give a key to the 
differentiation between "preventive and 
enforcement measures 11 and "preventive 
and enforcement actions, 11 viz, the 
presence of the use of armed force in 
the latter, there still remains the prob- 
lem that article 53 only prohibits a 
regional organization from taking "en- 
forcement 11 and not "preventive 11 action 
without the authorization of the Se- 
curity Council. No clue has been un- 
covered which would give any assistance 
to a resolution of this problem. Never- 
theless, it is a fact that the charter 
speaks of four different types of 
processes which may be taken by the 
Security Council, and it denies only one 
of these— enforcement action— to a re- 
gional organization without its first 
securing Security Council approval. 
Thus it is concluded that nothing in the 
charter prohibits a regional organization 
from taking, without Security Council 
authorization either: 

(1) preventive measures; 

(2) preventive action; or 

(3) enforcement measures. 

This naturally raises the question of 
the differentiation between the adjec- 
tives "preventive 1 and "enforcement. " 
A logical explanation appears in the 
provisions of articles 41 and 42 to the 
effect that the measures or actions 
which they contemplate are to be em- 
ployed to give effect to the "decisions 
of the Security Council 11 — decisions 
which have been taken under article 39 
to "maintain or restore international 
peace and security. 11 Enforcement mea- 
sures or action, therefore, are preceded 
by a determination either that a "threat 
to the peace 11 or a "breach of the 
peace 11 exists and that it must be dealt 
with in a certain manner. Hence, any 
measure or action taken under article 41 
or 42 is either an enforcement measure 
or an enforcement action, since it is 



88 



taken to place in effect, or to enforce, a 

decision of the Security Council con- 
cerning how the threat or actual breach 
should be settled. 

A totally different situation exists 
where there is neither a "threat to the 
peace" nor a "breach of the peace" hut 
where, nevertheless, there is a situation 
which could mature into such if outside 
assistance is not brought to bear. This is 
the "prevention ... of threats to the 
peace" spoken of in article 1(1), giving 
rise to the obviously contemplated need 
for "preventive" actions or "preventive" 
measures. Since these types of processes 
are not prohibited to a regional organi- 
zation, it must be concluded that they 
are properly matters for regional compe- 
tence under article 52. The above analy- 
sis, therefore, would support the fol- 
lowing types of actions by a regional 
organization without Security Council 
authorization: 

Preventive measures— not in- 
volving the use of armed force; 

Preventive action— involving 
the use of armed force; and 

Enforcement measures— not 
involving the use of armed force. 

It is recognized that the above 
reasoning may seem to be an unduly 
technical and tortuous attempt to inter- 
pret into the charter an unintended 
competence in regional organizations. 
However this may be, it seems obvious 
that a start down this tortuous patli is 
already well under way. This has been 
occasioned by the unwillingness of the 
powers to entrust disputes in which 
they are interested to the veto-bound 
Security Council and by the resultant 
inability of the Security Council to 
furnish the "effective collective" substi- 
tute for unilateral self-help which it 
promised. 

The Palestine Case (1918). This 
was first seen in the Syrian attempt to 
justify the Arab actions in the hostilities 



which broke out almost immediately 
alter the Stale of Israel was established 
in 1948. It was argued that the interven- 
tion of the Aral) Stales in Palestine was 
taken under the authority of article 52 
of the charter. Since the Arab League 
was a recognized regional organization, 
it was within its competence to seek a 
pacific settlement of the local situation 
in its area. This argument was met with 
the adamant rebuttal by the United 
States that the Arab League's actions 
were in the nature of "enforcement 
actions" and that such were prohibited 
without first securing the authorization 
of the Security Council. 

The Dominican Republic Case 
(1960-61). This issue was again debated 
in the Security Council in connection 
with the sanctions imposed on the 
Dominican Republic by the members of 
the OAS in late 1960. At the Sixth 
Meeting of Consultation of Ministers of 
Foreign Affairs, the members of the 
OAS, acting collectively, condemned 
the Dominican Republic for acts of 
intervention and aggression against 
Venezuela. It was resolved that the 
members of the OAS should apply both 
diplomatic and economic sanctions 
against the Dominican Republic. 
These actions were reported to the 
Security Council. 6 The Soviet Union 
promptly submitted a draft resolution 
under which the Security Council would 
have specifically approved the action of 
the OAS. 47 In support of his draft 
resolution, the Soviet representative ex- 
pressed complete agreement with the 
actions taken by the OAS but insisted 
that the actions taken were "enforce- 
ment actions" within the meaning of 
article 53, and that, as such, they 
required the authorization of the Se- 
curity Council. 48 This has been astutely 
termed a "shrewd tactical move" on the 
part of the Soviet Union, since it sought 
"to establish the competence of the 
Security Council to control the applica- 
tion of enforcement measures by the 



89 



OAS, l>y advocating the approval, not 
the rejection, of OAS aelion in the 
initial case. 

The memhers of the OAS who were 
sitting on the Security Council were 
quick to recognize the purpose behind 
this Soviet move. The representative of 
Argentina ohserved: 

The Soviet view is that, under 
Article 53 of the Charter, the 
Security Council is competent to 
approve the steps recently taken 
hy the Organization of American 
States with regard to one of its 
memhers. At the same time it is 
clear that, a contrario sensu, the 
Soviet view also implies that the 
Security Council is entitled to 
annul or revise these measures if it 
sees fit. 5 

Argentina did not feel that it was 
necessary for the Security Council to 
take a position on this Soviet view and, 
in conjunction with Ecuador and the 
United Stales, submitted a substitute 
draft resolution under which the Se- 
curity Council would simply take note 
of the actions of the OAS. l 

The United States, arguing in support 
of the substitute draft resolution, staled 
simply that the measures taken by the 
OAS were entirely within the authority 
of a regional organization, since any of 
the actions being taken collectively 
"could be taken individually by any 
sovereign state on its own initiative. " 5 2 
Strong support for this position was 
given by Venezuela, 53 China, 54 and the 
United Kingdom. The latters represen- 
tative gave this analysis of the situation: 

... it is the view of my delegation 
that when Article 53 refers to 
"enforcement action, " it must be 
contemplating the exercise of 
force in a manner which would 
not normally be legitimate for any 
State or group of States except 
under the authority of the 



it 



Security Council. Other pacifying 
actions under regional arrange- 
ments as envisaged under Chapter 
VIII of the Charter which do not 
come into this category have 
simply to be brought to the atten- 
tion of the Security Council under 
Article 54. 55 

Other members of the Security Council 
were not ready to go quite so far. 
Several expressed the view that the term 
enforcement action" was ambiguous 
and required further study so that its 
meaning could be determined. It was 
their feeling, however, that this particu- 
lar case could be disposed of without 
making this determination. 

Only Poland lent its support fully to 
the Soviet position. The remainder of 
the Security Council either felt that 
there was no need to determine if the 
actions of the OAS were, in fact, "en- 
forcement actions" or that they did not 
constitute such actions. 

The three-power substitute draft was 
put to a vole and carried by a vole of 9 
to 0, with Poland and the Soviet Union 
abstaining. 

Two conflicting opinions of the 
effect of this vole have been put for- 
ward. The first, that of John C. Dreier, 
is that: 

By adopting the American alterna- 
tive rather than the Soviet pro- 
posal, and thus avoiding any for- 
mal approval or disapproval of the 
OAS action, the Security Council 
in effect endorsed the view held 
by the Sixth Meeting- of Foreign 
Ministers: that authorization of 
the Security Council was not 
necessary. Ah important prece- 
dent was thereby established. 56 

On the other hand, Professor -In is L. 
Claude, Jr., contends thai, because of 
the uncertainly expressed by many 
members concerning the validity of ihe 
legal position advanced by the United 



90 



Slates, the Council's action "hardly 
represented a decisive endorsement of 
(he proposition thai the authorization 
of the Security Council is not required 
for <)\S sanctions falling short of mili- 
tar\ lorce. 

1 1 is this author's view that the 
opinions expressed l»v Mr. John C. 
Drcier represent the more reasonable 
analysis. While it may be true, as Pro- 
fessor Claude asserts, that some mem- 
bers of the Security Council were un- 
willing to directly support the U.S. legal 
position on the meaning of the term 
"enforcement action, 1 ' it remains a fact 
that in their vote for the substitute 
resolution they lent their effective sup- 
port to this proposition. The effect of 
the adoption of this resolution— par- 
ticularly in the context within which it 
was debated— is that Security Council 
approval of the type of action taken by 
the OAS is m>t required. All members 
had an opportunity to vote for the 
Soviet-sponsored approval, and their 
decision to vote instead on the substi- 
tute draft must be interpreted as a 
decision that it was preferable to the 
Soviet draft, thai vole on the Soviet 
draft was not desirable, and, hence, that 
approval of the OAS action was not 
necessary. 

There is no question but that the 
handling of this case by the Security 
Council has set a significant precedent 
leading toward the emancipation of 
regional organizations from a restrictive 
interpretation of article !">.'{. And this is 
as it should be. Collective sanctions by a 
regional organization should be per- 
missible if such sanctions are not in 
conflict with some provision of the 
charter. Certainly collective sanctions, 
which would be lawful if taken unilater- 
ally, should fall within the authorized 
category of regional actions. In this 
regard the following observation of the 
1 homases is pertinent: "...then- is 
nothing in the Charter thai would pro- 
hibit a stale from applying sanctions 
unilaterally against another stale so long 



as under Article 2. Paragraph 4, such 
sanctions do not involve a threat or use 
ol lore*'. 

The significance of the Security 
Councils resolution of this case lies in 
the fact that ils determination was, in 
effect, a determination that the non- 
forceful measures taken by the OAS 
were similar to those nonforceful mea- 
sures outlined in article 41 of the 
charter and that they were not "en- 
forccment actions," but rather were 
"enforcement measures." As such, they 
lie within the competence of a regional 
organization, in accordance with the 
analysis set forth above. 

The Cuban Case (January- 
February 1962). The decisions taken in 
the Dominican Republic case were still 
fresh in the minds of the members of 
the Security Council when, in early 
1962, the question of the legitimacy of 
actions of the OAS again came into 
prominence. In January 1962 the 
Eighth Meeting of Consultation of 
Ministers of Foreign Affairs, in a meet- 
ing held at Runte del Estc, passed a 
series of resolutions suspending Cuba 
from the OAS and imposing partial 
economic sanctions on her. Cuba 
once again sough I United Nations assis- 
lance. She first pursued her complaints, 
directed essentially against the United 
States, in the General Assembly. A tier 
more than 2 weeks of debates, however, 
the General Assembly overwhelmingly 
refused to lake any action.' Cuba then 
appealed to the Security Council to hear 
ils case, but the Security Council re- 
fused to place the Cuban complaints on 
its agenda, essentially because the mat- 
ter had been fully debated in the Gen- 
eral Assembly 61 In the debates pre- 
ceding this determination, it was obvi- 
ous that many members of the Security 
Council considered the Cuban com- 
plaints as nothing more than a recast ol 
the M)00 Dominican Republic issue, and 
at least the United Stales, the United 
Kingdom, Chile, and Venezuela 



91 



considered thai the precedent set in that 
case rendered a rediscussion of the issue 
unnecessary. 

On 8 March 1962, Cuha look a new 
tack. Now she requested the Security 
Council to seek an advisory opinion 
from the International Court of Justice 
concerning whether or not the measures 
taken against her hy the OAS were 
"enforcement actions'" which were 
within the competence of that organiza- 
tion without its first ohtaining Security 
Council approval. 62 The debates on this 
Cuban request consumed seven full 
meetings of the Council, extending from 
14 to 22 March. 63 Essentially the same 
positions were asserted in these debates 
as had been in the two prior debates on 
this issue. This time, however, the 
United States found far greater support 
for its position that the actions under- 
taken by the OAS were not "enforce- 
ment actions'* within the meaning of 
article 53 than it had in the Dominican 
Republic case. France, 64 China, 65 the 
United Kingdom, 66 Ireland, 67 Chile, 68 
and Venezuela 69 all expressed essential 
concurrence with the U.S. interpreta- 
tion. The Soviet Union found support 
only from Cuba, a nonmember of the 
Security Council, the United Arab 
Republic, and Rumania. The delegate 
from Ghana expressed a willingness to 
have the mailer heard by the Interna- 
tional Court since he did not feel that 
the debates in the Dominican Republic 
case demonstrated a clear drawing and 
determination of the issue. 70 After ex- 
haustive debates, the Security Council 
rejected the Cuban proposal by a vote 
of 7 to 4. 71 

Professor Claude describes the result 
of this case as follows: "Far more 
genuinely than the Dominican case, the 
Cuban case in its March 1962 phase 
constituted a substantial victory for the 
United Slates demand that the Security 
Council be debarred from exercising 
control over the enforcement activities 
of the OAS." 72 1 1 is true thai these two 
cases, taken together, constitute a rather 



compelling interpretation of the term 
"enforcement action" as not including 
those measures set forth in article II of 
the charier. It would seem, however, 
that Professor Claude's insistence that 
this interpretation was taken because of 
the U.S. "demand" is unfair. It may just 
be, contrary to the critical thesis 
adopted by Professor Claude, that this 
interpretation was adopted by large 
majorities of the Security Council be- 
cause it was the correct one. Certainly, 
it was forcefully argued by many states 
other than the United States, and essen- 
tially by those states which were inter- 
ested in preserving what they considered 
to be the reasonable authorities of a 
regional organization to handle local 
disputes in a pacific manner, free from a 
possible big power veto. Univcrsalists 
may dislike what they see emerging 
from the Dominican Republic and 
Cuban cases, but, once again, it reflects 
nothing more than the desire of states 
to seek some workable collective system 
for resolving disputes. If the veto-bound 
Security Council cannot provide this 
system, states must be expected to look 
elsewhere. 

The dangers inherent in this de- 
parture from universalism, however, 
were dramatically outlined by the repre- 
sentative of the Soviet Union in the 
discussions of the Cuban question. In 
clearly prophetic terms, he stated: 

\\ today the Security Council fails 
to nullify the unlawful decisions 
thus taken against Cuba, then 
tomorrow similar action may be 
taken against any other country 
of Latin America, Africa, Asia or 
any other continent whose neigh- 
bors, upon some pretext or an- 
other, having assembled at a re- 
gional meeting, arbitrarily decide 
to apply it to the machinery of 
coercion in the form of enforce- 
ment action, thus usurping the 
prerogatives of the Security Coun- 

Cll. 



92 



The Cuban Quarantine (Octo- 
ber 1962). On 22 October 1962, Presi- 
dent |ohn F. Kennedy announced to 
the world 74 that the United States had 
imposed a "strict quarantine" on all 
offensive weapons to Cuba, including 
nuclear missiles which were being in- 
stalled in that country by the Soviet 
Union. Almost immediately thereafter 
the Council of the Organization of 
American States met in its capacity as 
the Provisional Consultative Organ 
under the Rio Treaty, at the request of 
the United States, and unanimously 
recommended to all members of the 
OAS that they take "all measures . . . in- 
cluding the use of armed force . . ." to 
prevent Cuba from continuing to receive 
military supplies from the Sino-Soviet 
powers which may threaten the peace 
and security of the Americas and "to 
prevent the missiles in Cuba with offen- 
sive capability from ever becoming an 
active threat to the peace and security 
of the Continent."' The quarantine 
became effective at 1000, Wednesday, 
24 October, and was enforced by hun- 
dreds of U.S. planes and ships and 
several from other members of the 
OAS. 76 For the first time since the 
1947 Palestine case, a regional organiza- 
tion had resorted to the use of force. 

It is not the intention of this paper 
to debate the legality of the actions 
taken by the United States and by the 
OAS. This has been argued at length by 
many. It is important to note, how- 
ever, that the official U.S. and OAS 
justifications for their actions were 
based, not on the self-defensive provi- 
sions of article 51 which most publicists 
seem to prefer, but rather on the au- 
thority of a regional organization to 
deal with matters relating to the main- 
tenance of international peace and se- 
curity under articles 52 and 53. 

At the urgent requests of the United 
States, the Soviet Union, and Cuba, the 
Security Council convened on 2'$ Oc- 
tober 1 ( )(>2 to consider the situation. 
The gravity and urgency of the situation 



prevented any genuine debate over the 
legalities involved. It was contended, of 
course, that the actions of the United 
States in effecting a "blockade" of Cuba 
were flagrant violations of international 
law and should be condemned as 
such. Ambassador Stevenson of the 
United States, although terming the 
OAS actions as "defensive measures 
taken by the American Republics to 
protect the Western Hemisphere against 
long-range Soviet nuclear missiles, " did 
not find it necessary to debate the 
legality of this issue in view of the 
initiatives of the U.N. Secretary General 
to mediate the dispute. Neither the 
United States nor other OAS members 
had any difficulty, however, in finding 
ample authority in both the Charter of 
the United Nations and in the Charier 
of the Organization of American States 
for their actions. Only one member 
of the Security Council contended that 
the OAS actions were "enforcement 
actions" which were improper without 
Security Council authorization. In 
arguing on this point, the representative 
of Ghana stated: 

... if it is recalled that the United 
States delegation, in previous de- 
bales, had expressed the view that 
enforcement action consists of 
coercive measures involving the 
use of air, sea or land forces, of 
the type falling within the scope 
of Article 42. then it is clear that 
the action contemplated by the 
United Slates must be regarded as 
enforcement action, which is in- 
admissible in terms of Article 53, 
without the authorization of the 
Security Council. 

As noted above, however, the ma- 
chinery of the Security Council proved 
inadequate to a solution of this conflict 
between the two superpowers. Conse- 
quently, no action was taken which 
could be interpreted as making a resolu- 
tion of this Ghanaian argument. Instead, 



93 



the Secretary General undertook media- 
tion of the dispute directly between the 
powers involved, and, as history re- 
counts, the dispute was resolved by 
removal of the Soviet missiles from 
Cuba and by the Soviet agreement to 
discontinue any further shipments. The 
naval quarantine was lifted on 20 No- 
vember 1962. 82 

In an address made on 3 November 
1962, Mr. Abram Chayes, the Legal 
Advisor to the Department of State, 
outlined the official U.S. legal rationale 
for the Cuban quarantine. Mr. 

Chayes' essential position was that the 
fundamental authority for the OAS 
action was contained in articles 6 and 8 
of the Rio Treaty, which provide for 
collective action, including the use of 
armed force, in the case of an armed 
attack and in the situation where any 
American state is threatened by an 
"aggression which is not an armed at- 
tack ... or by any other fact or situa- 
tion that might endanger the peace of 
America." Regarding the use of force in 
implementation of the quarantine, Mr. 
Chayes likened the collective procedures 
of the OAS to those of the United 
Nations and argued that the "assent" of 
the parties, including Cuba, to the pro- 
visions of the OAS Charter and the Rio 
Pact, together with the established col- 
lective procedures, legitimizes "the use 
of force in accordance with the OAS 
resolution dealing with a threat to the 
peace in the hemisphere." 84 Although 
this argument may appear questionable, 
the political rationale which underlies it 
does not. Mr. Chayes said: 

. . . the drafters of the Charter 
demonstrated their wisdom by 
making Security Council respon- 
sibility for dealing with threats to 
the peace "primary" and not 
"exclusive." For events since 
1945 have demonstrated that the 
Security Council, like our own 
electoral college, was not a viable 
institution. The veto has made it 



substantially useless in keeping 
the peace. 

The withering away of the 
Security Council has led to a 
search for alternative peacekeep- 
ing institutions. In the United 
Nations itself the General As- 
sembly and the Secretary-General 
have filled the void. Regional 
organizations are another obvious 
candidate. 

Not until April 1963 did Mr. Chayes 
undertake to provide an answer to the 
Ghanaian argument that the OAS ac- 
tions were "enforcement actions" im- 
permissible under article 53 of the 
charter. 86 In so doing, Mr. Chayes 
commented on the gradual narrowing 
by the Security Council of those provi- 
sions of article 53(1), dealing with 
enforcement action. He interpreted the 
actions of the Security Council in the 
1960 Dominican Republic case and in 
the January-February 1962 Cuban case 
as indicating a retroactive approval by 
the Security Council of "enforcement 
actions" taken by the OAS against those 
states. This, he explained, resulted from 
the refusal of the Security Council to 
condemn those actions. Thus, he as- 
serted, it is not necessary to obtain prior 
approval of the Security Council to 
legitimize an enforcement action. It is 
enough that the Security Council fails 
to disapprove them. 

This is an unfortunate argument, 
indeed, since it plainly overlooks the 
position advocated by the United States 
throughout both of these prior cases 
that the OAS actions were not enforce- 

8 7 

ment actions. 

There is no question that the OAS 
implementation of the Cuban quaran- 
tine involved action by sea and air 
forces so as to bring it within the 
meaning of the term "action" as used in 
the "enforcement action" of article 53, 
and there is no question but that the 
argument advanced by Mr. Chayes that 



94 



prior approval for a regional enforce- 
ment action need not be obtained must 
be rejected. This does not mean, how- 
ever, that the charter prohibits the 

action taken. Reference to the two 
documents establishing the quarantine 
will show clearly that it was taken not 
as an "enforcement action'' as that term 
is used in article 53(2), but rather as a 
"preventive" action coming within the 
competence of a regional organiza- 
tion. In the Presidential proclamation 
announcing the quarantine, President 
Kennedy stated that the Congress of the 
United States had declared that the 
United States "is determined to pre- 
vent . . . Cuba from extending by force 
or the threat of force, its aggressive or 
subversive activities to any part of this 
hemisphere, and to prevent in Cuba the 
creation or use of an externally sup- 
ported military capability endangering 
the security of the United States." 8 
Similarly, the OAS resolution calling for 
the quarantine sought to ensure that 
Cuba "cannot continue to re- 
ceive . . . [military materiel] . . . which 
may threaten the peace and security of 
the Continent and to prevent the mis- 
siles in Cuba with offensive capability 
from ever becoming an active threat to 
the peace and security of the conti- 

. "9 

nent. 

It seems obvious that both the Presi- 
dent and the Council of the OAS were 
saying that the actions to be taken were 
"preventive ,, actions spoken of in article 
1(1), of the charter— actions which are 
not prohibited to a regional organiza- 
tion by the provisions of article 53(2). 

The Dominican Republic Case 
(1965). The next, and the last, in this 
series of OAS actions was the crisis in 
the Dominican Republic which com- 
menced in April 1965. 

It will be remembered that during 
the course of a rebellion in the Domini- 
can Republic in late April, the American 
Ambassador in the Dominican Republic 
reported that the Dominican authorities 



had stated that they "could no longer 
control the situation, that American and 
foreign lives were in desperate danger 
and that outside forces were re- 
quired.' On the evening of 28 April 
1965, in response to an urgent appeal 
from the U.S. Ambassador, President 
Johnson announced the landing of 400 
U.S. Marines in these words: 

I have ordered the Secretary of 
Defense to put the necessary 
American troops ashore in order 
to give protection to hundreds of 
Americans who are still in the 
Dominican Republic and to escort 
them safely back to this country. 
The same assistance will be avail- 
able to the nationals of other 
countries, some of whom have 
already asked for our help. 

In a television address to the nation 
on 2 May 1965, President Johnson 
reiterated the necessity for the landing 
of American troops for the protection 
of American nationals. He went further, 
however, and explained that the re- 
sources of the Organization of American 
States were now active in seeking a 
solution to the Dominican problem. He 
explained that the "revolutionary move- 
ment had taken a tragic 11101" and that 
Communist leaders had taken increased 
control. He thereafter effectively modi- 
fied the U.S. purpose in retaining its 
forces in the Dominican Republic in the 
following words: "The American na- 
tions cannot, must not, and will not 
permit the establishment of another 
communist government in the Western 
Hemisphere. 1 ' 93 

The Dominican situation first came 
to the official attention of the OAS on 
27 April 1965, when the United States 
requested a meeting of the Inter- 
American Peace Committee to consider 
the problem. 94 On 28 April the OAS 
was informed of the American decision 
to land troops, and a special meeting of 
the OAS Council was convened on the 



95 



afternoon of that same day. On 30 April 
the first significant OAS action was 
taken -a resolution calling for a cease- 
fire and for a neutral zone of refuge in 
Santo Domingo. 95 On 1 May the OAS 
estahlished a special five-memher com- 
mittee to go to the Dominican Republic 
and to offer its good offices in media- 
tion of the dispute and to assist in the 
reestablishment of peace and order. On 
6 May the OAS acted to create an 
Inter-American Peace Force, composed 
of contingents from those OAS member 
states capable of providing them and to 
operate in the Dominican Republic, 
under the following guidance. 

This Force will have as its sole 
purpose, in a spirit of democratic 
impartiality, that of cooperating 
in the restoration of normal con- 
ditions in the Dominican Repub- 
lic, in maintaining the security of 
its inhabitants and the inviola- 
bility of human rights, and in the 
establishment of an atmosphere of 
peace and conciliation that will 
permit the functioning of demo- 
cratic institutions. 6 

This force, consisting ultimately of 
approximately 20,000 troops, came into 
being on 23 May 1965. It was com- 
prised of forces from five OAS member 

Q *7 

states and was commanded by a 
Brazilian general. 

During the course of these events, 
the Security Council held lengthy and 
acrimonious debates over what was 
termed the "armed intervention by the 
United States in the internal affairs of 
the Dominican Republic 9 ... in viola- 
tion of the fundamental principles of 
the United Nations ('barter and the 
universally recognized rules of interna- 
tional law." Ambassador Stevenson, 
on 3 May 1965, stressed that the Or- 
ganization of American States "lias for 
several days been dealing with the situa- 
tion and has made substantial prog- 
Although he pointedly 



ress 



"1 1 



argued, as had President Johnson in his 
2 May address, that the American slates 
were unwilling to "permit the establish- 
ment of another Communist Govern- 
ment in the western hemisphere, " 
he stressed that the initial U.S. motiva- 
tion was to provide needed protection 
to its nationals, lie then outlined the 
ultimate U.S. purpose as the: "re- 
establishment of constitutional govern- 
ment and, to that end, to assist in 
maintaining the stability essential to the 
expression of the free choice of the 
Dominican people." ° 3 The argument 
was stridently advanced that the actions 
of the United States could receive no 
color of legality by clothing them with 
the authority of the OAS. It was argued 
again, as it had been during the 1962 
Cuban crisis, that the OAS had no 
authority to resort to the use of force in 
the settlement of a regional dispute 
without first obtaining the approval of 
the Security Council, and condemnation 
of the action of both the United States 
and the OAS was sought. 104 Notwith- 
standing these arguments, the Security 
Council ultimately took no action to 
condemn the activities of either the 
United States or the OAS. It did, 
however, enact two resolutions calling 
for cease-fires and inviting the Secre- 
tary General to send a representative to 
the Dominican Republic to report to 
the Seeurity Council on the situation. 
Mr. Jose A. Mayobre almost immedi- 
ately was dispatched by the Secretary 
General, and through the medium of his 
periodic reports the Security Council 
was kept advised of the Dominican 
developments. 106 Both the United Na- 
tions and the OAS thereafter main- 
tained a presence in the Dominican 
Republic, although not without some 
conflict, ° 7 until the crisis was ulti- 
mately brought under control. 

The Dominican Republic case must 
be broken down into its two separate 
aspects— first, the initial, unilateral land- 
ing of troops by the United Slates for 
the protection of its nationals; and 



96 



secondly, the retention of those troops 
in thr country, augmented by troops 
from other OAS member stales, under 
OAS auspices. 

The first of these, although con- 
demned by many, has been justified 
by others as a legitimate exercise of 
unilateral self-defense or unilateral for- 
cible self-help for humanitarian pur- 
poses. Whatever may be one's position 
in this controversy, it must be conceded 
that it is much less difficult to find a 
legal rationale for what was certainly a 
necessary but limited action to save 
human lives than it is to justify the 
subsequent substantial and prolonged 
presence of American and OAS 
troops. 1 l 

There is little doubt that this latter 
action stemmed primarily, if not totally, 
from the fear of the United States, 
conveyed with conviction to at least 
two-thirds of the states in the OAS, that 
Communist forces had taken over 
leadership of the Dominican rebellion 
and that there was a definite danger that 
they would succeed in capitalizing on 
the turmoil and in establishing a Com- 
munist government in that country. 
This fear, voiced by both Ambassador 
Stevenson and President Johnson, 1 * * 
has led some prominent Americans to 
conclude that it was the motivating 
force behind the initial U.S. actions. 
Whether or not this criticism is justified 
is difficult to say, but it is perfectly 
clear that only a few short days after 
the crisis erupted this did become the 
principal, if not the sole, U.S. and OAS 
motivation. The purpose for which the 
OAS Inter-American Peace Force was 
created— "cooperating in the restoration 
of normal conditions in the Dominican 
Republic . . . and in the establishment 
of an atmosphere of peace and concilia- 
tion that will permit the functioning of 
democratic institutions"— makes this 
conclusion inescapable. 

The Dominican crisis represented the 
epitome of what has been called the 
effort of the United States to seek 



"from the Inter-American system 'the 
legitimacy of multilateralism, 1 or to put 
it more simply, an OAS label for her 
hemispheric policies." This process 

was well on its way when, in 1954, the 
OAS adopted the Caracas Resolution 
condemning the intervention of interna- 
tional communism in inter-American 
affairs and declaring that: 

. . . the domination of control of 
the political institutions of any 
American State by the interna- 
tional communist movement, 
extending to this Hemisphere the 
political system of an extra- 
continental power, would consti- 
tute a threat to the sovereignty 
and political independence of the 
American States, endangering the 
peace of America, and would call 
for a Meeting of Consultation to 
consider the adoption of appropri- 
ate action in accordance with ex- 
isting treaties. 4 

This resolution, adopted at the insis- 
tence of the United States, was widely 
regarded as a "revivification of the 
Monroe Doctrine, shifted from a uni- 
lateral to a multilateral axis, and di- 
rected against Communism rather than 
Colonialism. " It is a fair comment 

that the provisions of this resolution 
have been the principal basis for U.S. 
hemispheric policy since 1954. Indeed, 
it has been said that the switch of the 
United States to a policy of regionalism 
was designed to ensure its ability to 
fight communism in the Western Hemi- 
sphere unimpaired by the Soviet 
veto. This was certainly borne out in 
the Cuban cases discussed above and in 
the Dominican crisis of 1965. Whether 
or not, however, the Caracas Resolution 
provides any legal basis for this latter 
action, and specifically for the military 
intervention by the OAS, is quite an- 
other matter. It could be argued, of 
course, as does Professor I'ulk, I lull: 

The appropriate institution lor 
partisan supranational action is to 



97 



be found in the regional level. 
Here the stabilizing value of politi- 
cal homogeneity for a group of 
closely related states favors a 
political use of regional organiza- 
tion even though this may involve 
on occasions a betrayal of the 
ideals of national self-determina- 
tion .... It is unfortunate in many 
respects to compel dissenting 
national communities to conform 
to regional political preferences, 
but it may be indispensable for 
the maintenance of minimum con- 
ditions of international sta- 
bility. 117 

This argument, however, does not pro- 
vide any legal basis, under current inter- 
national law, for the actions taken by 
the OAS in the Dominican case. At 
most, it provides a tenuous political 
rationale. 

Professor Fenwick offers what is 
perhaps the best legal rationale, as fol- 
lows: 



tainly not if thai civil war appears to be 
Communist inspired. If such a situation 
creates a breach of international peace 
and security or threatens to create such 
a breach, it would be appropriate for 
the cognizant regional organization to 
seek its settlement. But it would seem, 
if the purposes of the charter are not to 
be tortured to undue lengths, that the 
modes of regional settlement should be 
short of the use of armed force. Never- 
theless, the OAS did resort to the use of 
armed force, and there was a steadfast 
refusal of the Security Council to take 
any action other than to itself seek 
resolution of the dispute. One can only 
conclude that this refusal of the Se- 
curity Council to condemn the action of 
the OAS must be considered to have at 
least added the color of legality to it. In 
terms of actions lawful for a regional 
organization to take, in accordance with 
the discussion set forth previously, 
therefore, it can only be described as a 
"preventive action" involving the use of 
armed force. 



In the past riot and disorder have 
as a rule not been considered 
sufficiently important to consti- 
tute a threat justifying interven- 
tion. Rut I would say today that if 
a revolution should break out in 
one country or another, the Or- 
ganization of American Stales 
would be justified in doing what it 
could to prevent a civil war. The 
days of civil war are over. You 
cannot have a civil war today 
without disturbing the peace, cer- 
tainly not in America. Conse- 
quently, I interpret the Rio 
Treaty, Article 6, where it speaks 
of a threat to the peace, in a 
broader sense than it would have 
been interpreted 50 years 
ago 118 



• • • • 



It is true that "You cannot have a civil 
war today without disturbing the peace, 
certainly not in America, " and, cer- 



The Czechoslovakia Case 
(August 1968). This chronicle of events 
could not be concluded without at least 
a brief discussion of the Soviet and 
Warsaw Pact military intervention in 
Czechoslovakia in late August 1968. It 
was precisely this event which has 
driven home, with startling drama, the 
dangers inherent in the positions taken 
by the United States and most other 
OAS member states in the series of 
inter-American actions discussed above. 
During the late evening of 20 August 
1968, massive movements of Warsaw 
Pact troops into Czechoslovakia com- 
menced. Participating were units from 
the Soviet Union, Bulgaria, East Ger- 
many, Hungary, and Poland. 19 Before 
these movements were concluded, over 
400,000 Warsaw Pad troops were de- 
ployed in Czechoslovakia, occupying 
strategic positions and maintaining ef- 
fective foreign military control through- 
out the country. 



98 



On 21 Vugust, six members of lite 
Security Council Canada, Frame, Para- 
guay, the Unilcd Kingdom, and the 
United Stairs requested an urgent 
meeting of the Council to consider this 
situation, which was described as an 
armed intervention contrary to the pro- 
visions of the charter. The debates 

on this issue in the Security Council 
compare favorably with any ever held in 
invective and acrimony, accusation and 
countcraccusalion, and in political, 
rather than legal, overtones. Neverthe- 
less, there were claims of illegality by 
almost all members of the Security 
Council, claims which branded the 
Soviet and Warsaw Pact action as an 
unlawful intervention in the internal 
affairs of a sovereign state and as a 
plain violation of the basic tenets of the 
charter, particularly article 2(1). 
The delegate from the Soviet Union 
answered these allegations with what 
must be considered his legal rationale 
for his country's actions, and as any 
astute student of international law 
could have predicted, his arguments did 
not appear too different from those 
advanced by the United Stales in the 
series of OAS actions discussed above. 

His first position was based on the 
jurisdictional issue. He asserted that no 
slate affected by the Warsaw Pact action 
had requested the; Security Council to 
discuss this matter and that, in any case, 
the "events in Czechoslovakia were a 
matter for the Czechoslovak people and 
the States of the Socialist community, 
linked together as they were by com- 
mon responsibilities, and for them 
alone. " 12 ^ 

When this position was overruled and 
the Council proceeded to a debate of 
the substance of the matter, the Soviet 
representative then argued that "the 
decision of the Socialist countries to 
help the Czechoslovak people was fully 
consonant with the right of peoples to 
individual and collective self-defense as 
provided for in the (.barter and ... in 
the Warsaw Pact.' 124 He initially con- 



tended that the intervention was at the 
request of the Czechoslovak Covcrn- 
menl, but when this was branded as 

untrue by the Czechoslovak Govern- 
ment itself, 126 the argument was 
changed to state, in essence, that mem- 
bers of the Warsaw Pact ". . . bore full 
responsibility" for the unity of the 
Socialist Slates and that the ". . . fra- 
ternal countries firmly and resolutely 
opposed their unbreakable solidarity to 
any outside threat; nobody would ever 
be allowed to wrest a single link from 
the community of socialist states." 2 
He thus contended that the "socialist 
community" had a right to prevent, by 
force, any infringement on thai "com- 
munity" and to prevenl, by force, any 
defection from that "community" by 
any member state. 

These arguments were strikingly un- 
convincing. An eight-power draft resolu- 
tion condemning the intervention and 
calling for the withdrawal of all inter- 
vening forces was brought to a vote on 
23 August. It received a favorable vote 
of 10 members for to 2 against but was 
not adopted because of the negative 
vote of the Soviet Union which cast its 
105th veto to defeat the resolution. 
Although further debate was held, the 
Security Council took no action in the 
case and discontinued its consideration 
of the matter at the request of ihe 
Government of Czechoslovakia on 27 
August, when it appeared that bilateral 
negotiations between the Soviet Union 
and Czechoslovakia were progressing 
toward a solution of the crisis. 2 

The Soviet legal rationale, which was 
really only hinted at in the Security 
Council debates, was expanded upon 
and further delineated in a Pravda ar- 
ticle which appeared on 25 September 
1968. 129 Later, in an address to the 
General Assembly of the United Nations 
on '\ October, Ihe Soviet foreign Minis- 
ter, Andrei A. Gromyko, defined this 
rationale in unmistakably clear terms. 
He said: 



99 



The Soviet Union deems it neces- 
sary to proclaim from this ros- 
trum, too, that the socialist stales 
cannot and will not allow a situa- 
tion where the vital interests of 
socialism are infringed upon and 
encroachments are made on the 
inviolability of the boundaries of 
the socialist commonwealth and, 
therefore, on the foundations of 
international peace. 

The Soviet Union thus announced its 
own Monroe Doctrine and the Warsaw 
Pact its own Caracas Resolution. The 
Brezhnev Doctrine, which this has come 
to be called, 3 reasserts the familiar 
concept of a "socialist Commonwealth 
of Nations" but firmly rejects the tradi- 
tional thesis that the "socialist Com- 
monwealth" is constructed "on the 
basis of complete equality, respect for 
territorial integrity, national indepen- 
dence and sovereignty and noninter- 
ference in each other's affairs." 32 The 
Brezhnev Doctrine clearly envisions not 
only the right, but the responsibility, of 
the Warsaw Pact nations to intervene in 
the affairs of any member state when 
the "integrity" of the socialist com- 
munity as a whole is felt to be threat- 
ened. 

As starkly unlawful as I his may seem, 
it does not differ in principle from 
President Johnsons statement made 
during the Dominican Republic crisis of 
1965, that "the American nations can- 
not, must not, and will not permit the 
establishment of another communist 
government in the Western Hemi- 
sphere." 133 This position, taken at the 
highest level in the U.S. Government in 
both the Dominican Republic and in 
other cases, deliberately rejected the 
Soviet warning given during the 1960-61 
Cuban crisis, which for sake of emphasis 
will be quoted here again: 

If today the Security Council fails 
to nullify the unlawful decisions 
thus taken against Cuba, then 



tomorrow similar action may be 
taken against any other country 
of Latin America, Africa, Asia or 
any other continent whose neigh- 
bors, upon some pretext or an- 
other, having assembled at a re- 
gional meeting, arbitrarily decide 
to apply it to the machinery of 
coercion in the form of enforce- 
ment action, thus usurping the 
prerogatives of the Security Coun- 
cil. 13 * 

With this background, it must be said 
that the United States, for essentially its 
own political purposes, has been prin- 
cipally responsible for creating a series 
of precedents which lend some color of 
reason to the Soviet efforts to legiti- 
matize its Czechoslovakia intervention. 
At the very least, it must be said that 
the precedents set by prior OAS actions 
make it difficult to deny the efficacy of 
admonitions such as that of Harlan 
Cleveland, when he said in 1963: 
"Watch carefully the precedents you 
set. You will have to live with the 
institutions you create. The law you 
make may be your own." 5 

IV-CONCIAJSIONS 

A I the outset of this paper, the thesis 
was proposed that intervention as a 
sanction for an international delict was 
legitimatized by contemporary interna- 
tional law, provided such intervention 
was taken by a collectivity of states 
acting either through or under the 
auspices of the United Nations. It has 
also been noted throughout this paper 
that if the "effective collective" pro- 
cedures promised by the charter do not 
materialize, that states must be ex- 
pected to look elsewhere for the previ- 
ously held right of unilateral self-help 
which has been denied to them. That 
this latter course of action has been 
fully subscribed to by the worlds major 
powers should be obvious from the case 
histories digested above, as should be, 



100 



also, the basic tlirsis lliat collective 

intervention by regional groupings, at 

least whore a major power is a partner in 
the intervening collectivity, has been 

sanctioned consistently by the inaction 
of the Security Council. Thus, where 
the direct interests of the major powers 
are involved, the regional collectivity 
has become the principal and preferred 
instrument for the settlement of dis- 
putes within those areas of Great Power 
political dominance. The long and tortu- 
ous path which has led to this triumph 
of regionalism over the universalism of 
the charter is cluttered with the debris 
of article 2(4) and article 53(1), both of 
which have been emasculated by politi- 
cally motivated ^interpretations of the 
charter, reinterpretations which have 
been necessary so that regional group- 
ings could take action, with some sem- 
blance of legitimacy, which was con- 
sidered politically essential. Although 
the arguments accompanying each of 
the incidents involved were cast fre- 
quently in legal terms, their real import 
was not legal, but political, in nature. 
This has brought about a situation 
where, not without difficulty, but with 
precedent, one can interpret the charter 
so as to give some color of legitimacy to 
the flagrant violation of Czechoslo- 
vakian sovereignty by the Soviet Union, 
a situation which it can be said with 
complete fairness was never intended by 
the writers of the charter. 

Regional organizations, it is true, 
offer a practical and useful mechanism 
for the resolution of intraregionaJ dis- 
putes and for the imposition of sanc- 
tions for a verified international delict. 
And it is true, also, that this sort of 
collective sanction is far preferable to 
the unilateral sanctions which charac- 
terized the traditional law. But it be- 
comes less true, indeed not true, when 
these organizations are converted into 
"groups of states called to ratify the 
decisions of a Great Power, ^ or where 
they become merely the ". . . chosen 
instruments of the great antagonists 



locked in political conflict.* 1 It is this 
latter point which has been the great 
source of difficulty. The Brezhnev Doc- 
trine, the Caracas Resolution, and the 
statement by President Johnson during 
the 1965 Dominican Republic crisis 
have operated to transmute what were 
essentially political matters— i.e., the 
operation of an antagonistic political 
doctrine— into an international legal 
wrong. With this transmutation, and 
with the claim that such a delict has 
been committed, the regional grouping 
is provided with the legal basis for 
regional preventive or enforcement 
measures or for regional preventive 
action. Thus sanctions are imposed with 
some color of legality, and the interna- 
tional community is powerless to ob- 
ject. Regional groupings, therefore, have 
become instruments of a universal order 
in which law is subordinated to politics 
and instruments of power politics 
through which the United States and 
the Soviet Union justify their actions as 
consistent with the charter. 

This resurgent emphasis on politics 
rather than law— albeit clothed at times 
in legal terminology— is not condemned. 
It is simply noted as a fact of interna- 
tional life. The legitimacy of collective 
intervention as a sanction for an interna- 
tional delict has been confirmed, as has 
been its perversion into an instrument 
for political action. This demands the 
observation that the effectiveness of a 
system of international law does not 
depend upon the design or clarity of its 
charter, which clever minds can always 
interpret to their favor, but rather on 
the willingness of its subjects, particu- 
larly its powerful ones, to be judged by 
it. There can be no effective international 
system for the resolution of conflict, for 
the identification and sanctioning of 
wrongs, until the parties to that system 
are prepared to have it operate sometimes 
against what they consider to be their 
national advantage. 

It has been rightly observed that 
". . . what counts most in resolving dis- 



101 

putes is not so much the choice of a sense developing this "willingness to 

forum as a genuine desire to settle, lose." Politics, not law, will determine 

which always carries with it a willing- the legitimacy of collective interven- 

ness to lose." There is no evidence, as lions in the future as it undoubtedly has 

yet, that the Great Powers are in any in the past. 

FOOTNOTES 
I-INTRODUCTION 

1. For example, Professor Fenwick states: "Of all the terms in general use in international 
law none is more challenging than that of 'intervention.' Scarcely any two writers are to be found 
who define this term in the same way or who classify the same situations under it." Charles G. 
Fenwick, "Intervention: Individual and Collective," American Journal of International Law, 
October 1945, p. 645. Also, Mr. Julio Cueto-Rua has stated: ". . . the subject of non-intervention 
is without doubt one of the most controversial in international law. It can be said, for instance, 
that for fifty years inter-American relations have hinged upon the legality or illegality of 
intervention." Ann V. Thomas and Aaron J. Thomas, Jr., Non-intervention (Dallas: Southern 
Methodist University Press, 1956), p. viii, 67-74. 

2. See James L. Brierly, The Iaiw of Nations, 6th ed. (New York: Oxford University Press, 
1963), p. 402. See also Richard B. Lillich, "Forcible Self-Help by States to Protect Human 
Rights," Iowa I^aw Review, October 1%7. p. 330, and authorities cited, and Richard A. Falk, 
Legal Order in a Violent World (Princeton: Princeton University Press, 1968), p. 156. 

3. United Nations, General Assembly, Official Records: Resolution no. 21 HI, 20th scss., 
Supp. 14, A16014 (New York: 1966). Hereafter cited as GAOR. This resolution was adopted by 
a vote of 109-0, with but one abstention, that of the United Kingdom. See also, "The Charter of 
the Organization of American States," U.S. Treaties, etc., United States Treaties and Other 
International Agreements, 1951 (Washington: U.S. Dept. of State, 1952), v. II, pt. 2, p. 
2419-2420, for an equally inclusive definition of this concept. 

4. For a similar narrowing of the purpose for which an intervention is taken, see Falk, p. 
340. 

5. Thomas and Thomas, Non Intervention, p. 326. 

6. Brierly, p. 402-408. 

II-DEVELOPMENT OF THE SANCTION: A HISTORICAL SKETCH 

1. Falk, p. 190. 

2. Thomas and Thomas, Non Intervention, p. 85. See also Lillich, p. 327-329, and 
authorities cited, for a discussion of the traditional use of self-help in the enforcement of 
international standards relating to the treatment of a state's nationals abroad. 

3. Ibid; Fenwick, p. 647; Lillich, p. 327. 

4. Falk, p. 340. 

5. Claud H.M. Waldock, "The Regulation of the Use of Force by Individual States in 
International Law," The Hague, Academy of International Law, Recueil des Cours, 1952 (Paris: 
Librairie du Recueil Sirey, 1953), v. LXXXI, p. 467-468. Sec also Thomas and Thomas, 
Non-intervention, p. 130. 

6. Lillich, p. 330. 

7. "The Covenant of the League of Nations: Article 10," Armin Rappaport, ed., Sources in 
American Diplomacy (New York: Macmillan, 1966), p. 218. 

8. Ibid., p. 218-219. 

9. Ibid., p. 238. 

10. Fenwick, p. 654. 

11. Ibid., Ann V. Thomas and Aaron J. Thomas, Jr., The Organization of American States 
(Dallas'. Southern Methodist University Press, 1963), p. 21. 

12. "Seventh International Conference of American States, Montevideo, December 3-26, 
1933," Carnegie Endowment for International Peace, Division of International Law, Interna- 
tional Conferences of American States, 1933-1940 (Washington: 1940), p. 123-124. 

13. Ibid., p. 191; see also U.S. Laws, Statutes, etc., United States Statutes at Large, 1937 
(Washington: U.S. Govt. Print. Off., 1938), v. LI, p. 41. 

14. Rappaport, p. 248. 



102 

15. "Inter- American Conference on War and Peace," 1945 supp., American Journal of 
International Law, p. 108. 

I<>. "Charter of the United Nations: Preamble,* 1 United Nations, Yearbook of the United 
Nations, J 946- 7 (Lake Success, N.Y.: 1947), p. 831. 

17. Ibid. 

18. Ibid. 

19. Ibid. 

20. Ibid. 

21. Waldock. p. 490. 

22. Thomas and Thomas, Non Intervention, p. 209. [Emphasis supplied. 1 

HI-CHARTER REGULATION OF THE USE OF FORCE 

1. Georgetown University, Institute of World Polity, The Law of Limited International 
Conflict (Washington: 1965), p. v. Quiney Wright, "The Legality of Intervention under the 
United (Nations Charter," American Society of International Law, Proceedings, 51st Annual 
Meeting. 1957 (Washington: 1958), p. 79. See also Oliver Lissitzyn, International Imw Today and 
Tomorrow (l)ohhs Terry, N.Y.: Oceana, 1965). p. 30. 

2. Thomas and Thomas, Non-Intervention, p. 130. 

3. Rosalyil lliggins. The Development of International Isiw through the Political Organs of 
the United Nations (London: Oxford University Press, 1963), p. 216. Contra: See Lillich, where 
it is argued that a limited right of forcible self-help for the protection of human rights remains, 
notwithstanding the provisions of the charier. 

4. Philip C. Jessup. I Modern Isiw of Nations (New York: Macmillan, 1948), p. 158-159. 

5. Whether any such right existed under the traditional law is. of course, arguable. It has 
been said that the "price for inviolability of any territory is the maintenance of justice 
therein . . .," and that when this price is not paid that the application of force from without 
could be expected. Charles C. Hyde, International Law, 2d rev. cd. (Boston: Little, Brown, 
1945). v. I, p. 649. 

6. Jessup, p. 41. 

7. Moses Moskowitz, Human Rights and World Order (New York: Oceana, 1958), p. 34. 

8. Jessup, p. 41. 

9. Ruth B. Russell, A History of the United Nations Charter (Washington: Brookings 
Institution, 1958), p. 472-473, 688-712. For an excellent and concise discussion of the various 
pressures giving rise to these debates, see Inis L. Claude, Jr., "The OAS, the UN, and the United 
States," International Conciliation, March 1964, p. 3-15. 

10. Claude, p. 14. See also Linda B. Miller, "Regional Organizations and the Regulation of 
Internal Conflict," World Politics, July 1967, p. 594. 

11. Russell, p. 694-696; see also John C. Dreicr, The Organization of American States and 
the llemispliere Crisis (New York: Harper & Row, 1962), p. 26. 

12. The meaning of the term "self-defense" as utilized in the context of article 51 has given 
rise to considerable controversy. Some writers argue that the traditional right of self-defense has 
been substantially restricted by the article 51 requirement that it may be exercised only in 
response to an "armed attack." Others contend that article 51 merely recognizes the "inherent 
right" of self-drfen.se, and that the extent of that right is determined by the traditional law. For 
an excellent discussion of this controversy, and one which expresses this writer's view, see 
William T. Mallison, Jr., "Limited .Naval Blockade or Quarantine-Interdiction: National and 
Collective Defense Claims Valid under International Law," George Washington I^aw Revieiv, 
December 1962, p. 335-398. 

13. Rappaport, p. 312. 

14. That relating to action against former enemy states set forth in article 53(1). Ibid. 

15. This issue is examined in detail in Claude, p. 21-46. 

16. "Speech of Mr. Castillo Arriola of Guatemala at the 675th Meeting of the Security 
Council on 20 June 1954," United Nations, Security Council, Official Records (hereafter cited as 
SCOR), 9th Year 675th Mtg., Supp., April, May, June 1954, p. 11-12. 

17. Ibid., p. 13-14. 

18. Ibid., p. 15-16. 

19. Ibid., p. 22. 

20. Ibid., p. 38. 

21. SCOR, 9th Year, 676th Mtg., p. 1-6. 

22. Article 2 of the Inter-American Treaty of Reciprocal Assistance (Rio Pact), which reads 
as follows: 'The High Contracting Parties recognize the obligation to solve international 






103 

controversies by regional pacific procedures before referring them to the Security Council of the 
United Nations." Thomas and Thomas, The Organization of American Slates, p. 420. 

23. See text accompanying footnote 20. 

24. SCOR, 9th Year, 676th Mtg., p. 23. 

25. Ibid., p. 28. 

26. Ibid., p. 30-31. 

27. Ibid., p. 34. 

28. Claude, p. 30-34. 

20. SCOR, 15th Year, Supp., July, August, September 1960, S/4378. 

30. SCOR, 15lh Year, 874th Mtg., IU July I960, p. 1-2. 

31. Ibid., p. 28. 

32. Ibid. 

33. SCOR, 15th Year, Supp., July, August, September 1960, S/4395. See also SCOR, 15th 
Year, 874th Mtg., p. 34-35 and p. 38-39. 

34. SCOR, 15th Year, 875lh Mtg., p. 13-14. 

35. SCOR, 15th Year, 876th Mtg., p. 4. 

36. Ibid., p. 17 and SCOR, 875th Mtg., p. 12-13. 

37. Ibid., 876th Mtg., p. 23. 

38. GAOR, 15th Sess., 872d Plenary Mtg., 26 September 1960, p. 125. 

39. SCOR, 16lh Year, 921st Mlg., p. 10. 

40. SCOR, 92 1st, 922d and 923d Mlgs. 

41. GAOR, 15th Sess., Annexes, v. 11. Agenda Hem 90. 

42. For a brief discussion of these cases, see Claude, p. 13-46. 

43. For instance, a direct treatment of the term 'enforcement action" is not found in the 
detailed study of the background lo the charter appearing in Russell or in I, eland M. Goodrich 
and Fdward Hambro, ('barter of the United Nations (Boston: World Peace Foundation, 1949). 
See, however, the analysis of Mr. Alberto Fleras Camargo, quoted in SCOR, 17th Year, 996lh 
Mtg., 21 March 1962, p. 15. 

44. SCOR, 2d Year, 299th Mlg.; 302d Mlg. Sec also discussion in lliggins, p. 169. 

45. Dreier, p. 27; see also lliggins, p. 169; and Claude, p. 48-52. 

46. SCOR, 15th Year, Supp., July, August, September 1960, S/4476, 1 September 1960. 

47. Ibid., S/4481, S/4481, Rev. 1. 

48. SCOR, 15th Year, 893d, 894th and 895th Mtgs. 

49. -Claude, p. 48. 

50. SCOR, 15th Year, 893d Mtg., p. 6. 

51. U.N. Doc. S/4484. 

52. SCOR, 15th Year, 893d Mtg., p. 9. 

53. Ibid., p. 12,13. 

54. Ibid., p. 17. 

55. Ibid., p. 16. 

56. Dreier. p. 27. [Emphasis supplied. ] 

57. Claude, p. 53. 

58. Thomas and Thomas, Nonintervention, p. 131. 

59. For the text of these resolutions, see SCOR, 17th Year, Supp., January, February, 
March 1962, 8/5075, 3 February 1 962. 

60. GAOR, 16th Sess., 1105th Plenary Sess. The vote against the Cuban position was 50-11 
in the General Assembly's First Committee. 

61. SCOR, 17th Year, 991st Mtg. 

62. SCOR, 17th Year, Supp. January, February, March, S/5068, p. 88. 

63. SCOR, 17th Year, 992998th Mtgs. 

64. Ibid., 995th Mtg., p. 10-14. 

65. Ibid., p. 6-8. 

66. Ibid., 991st Mtg., p. 2-3. 

67. Ibid., 996th Mtg., p. 12. 

68. Ibid., 994th Mtg., p. 10-14. 

69. Ibid., 995th Mtg., p. 4-5. 

70. Ibid., 996th Mtg., p. 13-19. 

71. Ibid., 998th Mtg., p. 21, 27. 

72. Claude, p. 59. 

73. SCOR, 17th Year, 991st Mtg., p. 10. 

74. John F. Kennedy, "The Soviet Threat to the Americas," The Department of State 
Bulletin, 12 November 1962, p. 716. 



104 

75. For text of resolution, see ibid., p. 722-723. 

76. Joseph B. McDevitt, "The UN Charter and the Cuban Quarantine," The JAG Journal, 
April-May 1963, p. 71. 

77. See, e.g. ibid.; Mallison; Carl 0- Christol and Charles R. Davis, "Maritime Quarantine: 
the Naval Interdiction of Offensive Weapons and Associated Materiel to Cuba, 1962," The 
American Journal of International Ixtw, July 1063, p. 525; and the various views presented in 
"The Cuban Quarantine: Implications for the Future," American Society of International Law, 
Proceedings, 1963 (Washington: 1963), p. 1-49. For the latest treatment of this problem, see 
William P. Gerberding, "International Law and the Cuban Missile Crisis," Lawrence Scheinman 
and David Wilkinson, eds., International Ixiw and Political Crisis (Boston: Little, Brown, 196(1), 
p. 175. 

78. SCOR, 17th Year, 1022d Mtg., p. 21 et seq. f per the representative of Cuba, and p. 26 et 
seq., per the representative of the Soviet Union. 

79. SCOR, 17th Year, 1025th Mtg., p. 5. 

80. As noted in the text, above, the OAS resolution was adopted unanimously by the 20 
active members of the OAS. Additionally, both Venezuela (1023rd Mtg., p. 3) and Chile (1024th 
Mtg., p. 5) argued eloquently in support of the necessity and legitimacy of the OAS action. 

81. SCOR, 17th Year, 1024th Mtg., p. 19. 

82. For a brief survey of this series of events, see Mallison, p. 342-343, and authorities cited. 

83. Abram Chaycs, "The Legal Case for U.S. Action in Cuba," The Department of State 
Bulletin, 19 November 1962, p. 763. 

84. Ibid., p. 765. 

85. Ibid. 

86. Abram Chayes, "Law and the Quarantine of Cuba," Foreign Affairs, April 1963, p. 550. 

87. See notes 52, 64-6% supra, and accompanying text. 

88. See previous discussion under "The 'enforcement action' issue." 

89. Kennedy, p. 717, I Emphasis supplied]. 

90. "Text of Resolution," The Department of State Bulletin, 12 November 1962, 722-723. 
[Emphasis supplied.] 

91. Statement of Secretary Rusk as quoted in Jay Mallin, Caribbean Crisis (Garden City, 
N.Y.: Doubleday, 1965), p. 58. 

92. "White House Press Release, April 28, 1965," Documents on American Foreign 
Relations, 1965 (New York: Harper, 1966), (hereafter cited as For. Rel, 1965), p. 234. 

93. Ibid., p. 245. 

94. Mallin, p. 73. 

95. For. Rel, 1965, p. 236. 

96. "Resolution of the Tenth Meeting of Consultation of the Ministers of Foreign Affairs, 
Adopted May 6, 1965," For. Rel, 1965, p. 251. 

97. Jallin, p. 99. See also "Act Establishing the Inter-American Armed Force," SCOR, 20th 
Year, Supp., April, May, June, S/6381, p. 177. 

98. Ibid. 

99. SCOR, 20th Year, 1195th Mtg., p. 2. 

100. Ibid., 1196th Mtg., p. 3. 

101. Ibid., p. 12. 

102. Ibid., p. 16. 

103. Ibid., p. 18. 

104. Ibid., 1203d Mtg., p. 15, 16, and 25. See also letter to the President of the Security 
Council from the Representative of the U.S.S.R., Doc. 6411, Supp., April, May, June 1965, p. 
225. 

105. U.N. Doc. S/Res/203, and U.N. Doc. S/Res/205, For. Rel, 1965, p. 254 and 258, 
respectively. 

106. See generally, SCOR, 20th Year, Supp., April, May, June, Docs. S/6265, S/6369, 
S/6267, S/6378, S/6380, S/6386, S/6408, S/6420, S/6432, et cetera. 

107. See, for example, A. P. Schreiber and S.E. Schreiber, "The Inter-American Commission 
on Human Rights and the Dominican Crisis," International Organization, June 1968, p. 599. 

108. See, for example, John P.S. McLaren, "The Dominican Crisis: an Inter- American 
Dilemma," Canadian Yearbook of International Law, 1966 (Vancouver: University of British 
Columbia, Publications Centre, 1966), p. 178-193; R.T. Bohan, "The Dominican Case: Unilateral 
Intervention," A merican Journal of International Law, October 1966, p. 809-812. 

109. For the legal rationale advanced by the U.S. Dept. of State, see Leonard C. Meeker, 
"The Dominican Situation in the Perspective of International Law," The Department of State 
Bulletin, 12 July 1965, p. 60. See also, Lillich, p. 341-344 and authorities cited. It is not this 



105 

author's purpose, nor does the need present itself here, to enter into this controversy. It is 
enough to reiterate the general thesis that if the collective procedures provided through the U.N. 
or through regional organizations are inadequate to meet such a critical, humanitarian need as 
was present in this case, states must be expected to resort to forcible self-help if their power 
position permits. 

110. Ibid., p. 344. 

111. See text accompanying notes 95 and 102, supra. 

112. J. William Fulbright, "The Situation in the Dominican Republic," Congressional Record, 
15 September 1965, p. 23855-23861. 

113. Gordon Connell-Smith, "The OAS and the Dominican Crisis," The World Today, June 
1965, p. 229-230. 

114. Resolution 93 of the Tenth Inter-American Conference entitled "The Declaration of 
Solidarity for the Preservation of the Political Integrity of the American States against the 
Intervention of International Communism." See Dreier, p. 50-53. 

115. Falk, p. 176. 

116. Ibid., p. 57. 

117. Ibid., p. 350. 

118. Charles G. Fenwick, "International Law, the OAS, and the Dominican Republic," Naval 
War College Review, December 1966, p. 28. 

119. "Situation in Czechoslovakia," UN Monthly Chronicle, August-September 1968, p. 41. 

1 20. Ibid., p. 34. 

121. Ibid., p. 37, 38; per the United States, p. 36; Canada, p. 37, 43; United Kingdom, p. 38; 
Denmark, p. 38; France, p. 43; China, p. 40; Senegal, p. 53; Algeria, p. 62; Yugoslavia, p. 67; and 
Czechoslovakia, p. 53. 

122. Per the delegate of Paraguay, ibid., p. 41. 

123. Ibid., p. 40. 

124. Ibid., p. 49. 

125. Ibid., p. 35. 

126. Ibid., p. 41,42. 

127. Ibid., p. 41,46. 
. 128. Ibid., p. 34-35. 

129. "Text of Pravda Article Justifying Invasion of Czechoslovakia," The New York Times, 
27 September 1968, p. 3:1. 

130. "Excerpts from Gromyko's Address before the United Nations General Assembly," The 
New York Times, 4 October 1968, p. 14:2. 

131. "The Brezhnev Doctrine," The New York Times, 28 September, 1968, p. 32:1. 

132. Cyrus L. Sulzberger, "Foreign Affairs: the Commonwealth," The New York Times, 27 
November 1968, p. 46:7. 

133. See note 93, supra. 

1 34. Sec note 73, supra. 

135. Harlan Cleveland, "Crisis Diplomacy," Foreign Affairs, July 1963, p. 638, 647. 

IV-CONCLUSIONS 

1. Richard J. Barnet, "United States Involvement in Foreign Civil Slrilc since World War 
II," American Society of International Law, Proceedings, 1967 (Washington: 1967), p. 80. 

2. Claude, p. 63. 

3. Ronald J. Yalem, Regionalism and World Order (Washington: Public Affairs Press, 
1965), p. 127. 

4. Jessup, p. 36. 

5. Ernest A. Gross, The United Nations: Structure for Peace (New York: Harper, 1962), p. 
50. 

4/ __ " 



106 



LEGAL ASPECTS OF COUNTERINSURGENCY 



J.F. Hogg 



I think you will agree that the title 
for this morning's talk is odd to say the 
least. You have studied, thought, talked 
about and listened to various facets of 
the problem of counterinsurgency— the 
political factors, the sociological, eco- 
nomic, and even the military factors. 
But what on earth does law have to do 
with this subject? 

Some of you will have remembered 
your experience during the Interna- 
tional Law Study earlier this year and 
perhaps have jumped to the conclusion 
that, without lawyers, the subject of 
counterinsurgency would be too clear- 
it needs someone to muddy the waters, 
to cast doubt and confusion where 
understanding and clarity existed be- 
fore. 

Let me illustrate. Take the definition 
of insurgency provided you last Wednes- 
day from the Dictionary of [United 
States] Military Terms. 1 "Insurgency— 
A condition resulting from a revolt or 
insurrection against a constituted gov- 
ernment which falls short of civil war. 
In the current context, subversive in- 
surgency is primarily communist in- 
spired, supported, or exploited. "Notice 
that we are supposed to be talking 
about a revolt or insurrection which 
falls short of civil war. What is a civil 
war, about which we are not to talk? A 
search of the same dictionary provides 
no definition of these two words. Do 
you suppose that the man on the street 



would describe that Mr. Castro engaged 
in in Cuba as a "civil war"? How about 
Ho Chi Minh's efforts— aren't they a 
civil war? Are North and South Vietnam 
two different countries, or different 
segments of the one country? Further, 
are there not sizable numbers of South 
Vietnamese fighting with the Viet Cong 
against the South Vietnamese govern- 
ment forces? Are those not elements of 
a civil war? Could we not describe the 
Santo Domingo situation as a civil war? 
In short, doesn't the exclusion of civil 
war from consideration in the subject of 
"counterinsurgency' exclude much of 
the most important material to be con- 
sidered? And, in any case, what reason 
could the authors of the definition have 
had for drawing a distinction between 
an insurrection and a civil war? Isn't the 
problem one of subversive aggression or 
wars of liberation? And can't you have a 
war of liberation taking the form of a 
civil war just as well as some other 
form? 

There, you see, I told you that a 
lawyer and a legal analysis would make 
no positive contribution to your study 
of the subject of counterinsurgency. 
Only a lawyer could be so distracted 
and fail to see the real problem. As with 
the case of Mike the burglar who was 
caught red-handed and hailed into 
court, help from lawyers should be 
declined. When the judge asked Mike 
why he had refused to be defended by a 



107 



lawyer, Mike said: "It's too late now— 
the time when I needed a lawyer was 
when I was making my plans to rob the 
joint. If I had had a good lawyer then, 
you would never have caught me with 
the goods." 

Now therein doth lie a moral. It is 
frequently forgotten that one of the 
most significant functions that a lawyer 
can perform is to counsel his client and 
advise him about the plans and conduct 
which his client intends for the future. 
Another important function is to serve 
as an advocate of his client's position- 
to present the case in the best and most 
favorable light possible. 

If this morning's subject were to send 
us off in pursuit of abstract rules of 
international law, derived from treaties 
or customary law, in the fond hope that 
by adequate research of the precedents 
at the same time so plausible and so 
convincing that even Mr. Lin Piao or Ho 
Chi Minh would recognize the justice of 
our cause— then indeed, law has no 
useful function to perform in this area. 
If, however, we start looking for a 
consistent framework in which to couch 
our response to the concept and prac- 
tice of wars of liberation, if we start 
looking for the most persuasive argu- 
ments in which to dress our policies of 
counterinsurgency, if before taking 
counterinsurgency action we pause to 
consider the relative plausibility and 
persuasiveness of arguments in support 
which, after the act, it will be possible 
to make— then indeed, legal analysis 
may have a more useful function to 
perform in this area. 

But, you will be saying, if that is the 
function to be served by legal analysis as 
applied to counterinsurgency, how does 
legal analysis differ from psychological 
warfare? How indeed! Look again, at 
the military dictionary definition of 
"counterinsurgency." Law isn't men- 
tioned, but psychological action is. To 
whom is that psychological action to be 
addressed? 

Part of my case to you this morning 



is that the Russians and Chinese are 
attempting to make significant use of 
legal-type arguments for psychological 
purposes. These legal-type arguments 
are being addressed to a wide variety of 
audiences— first to their own citizens, 
then to the citizens of countries to be 
subjected to "wars of liberation," then 
to the citizens of uncommitted coun- 
tries, and last but certainly not least, to 
our very own citizens. Within our own 
country there is considerable debate 
concerning the legality of our policies. 
The casual reader of The New York 
Times and other papers cannot fail to 
have noticed the significant emphasis to 
editorials as well as in full-page adver- 
tisements of arguments addressed to the 
legality or illegality of our position in 
Vietnam. Arguments as to the legality 
or illegality of our actions in Santo 
Domingo have touched off a consider- 
able debate in our own Senate. 

Provision of a legal framework for 
our policies of counterinsurgency has 
become, then, a serious task. We need to 
present our own policies as clearly, 
persuasively, and forcefully as possible 
to our own people. Lack of persuasive 
argument supporting our actions will 
only lead to detraction from our 
political and military effort within our 
own country. A fortiori, we need a 
persuasive legal framework in which to 
set our actions for the benefit of other 
states, and even for the benefit of 
people behind the iron curtain. Psycho- 
logical warfare is important, and I am 
suggesting to you, that the existence of 
a persuasive legal argument in support 
of our political and military actions is 
an important element in that psycho- 
logical operation. 

Khrushchev, Che Guevara, and Lin 
Piao have not created a concept devoid 
of appeal and superficial justification in 
this plan of "people's war" or "wars of 
liberation." The concept is carefully 
calculated to appeal to the notion, 
historically so important to us, that the 
right of revolution belongs inherently to 



108 



ever) people against an unjust govern- 
ment Just look at the way in which the 
military dictionary attempts to dis- 
tinguish between insurgency and subver- 
sive insurgency. We cannot, with any 
degree of plausibility, reject the concept 
of the freedom of a people to revolt. 
Immediately therefore, the concept of 
"war of liberation" puts us somewhat 
on the defensive. Revolution per se 
cannot be unlawful. What then, are the 
other identifiable element or elements 
which, when added to revolution, make 
it unlawful or subversive? 

We may be tempted to respond with 
the military dictionary— that element is 
"communist inspiration.' But such 
"communist inspiration" may be hard 
to define, and even harder to prove and 
verify as a matter of factual report. 
Furthermore, to many peoples of the 
world, and perhaps to a number of our 
own people, freedom to choose a gov- 
ernment, or the right of self-determina- 
tion, may well involve the right of a 
people to choose if they wish, and that 
wish is democratically established, a 
government communist in form. For us 
simply to take a position, therefore, 
that all revolution is lawful, save only 
that which is communist inspired, may 
be a position substantially devoid of 
plausibility or persuasiveness, not only 
for world audiences but also for some of 
our own. Perhaps we must look further 
for those elements which, in addition to 
revolution, are to make such revolution 
into subversion or subversive aggression. 
If the world were free of lawyers, you 
may say, anyone could tell me that the 
distinctive factor making the revolution 
subversive is intervention from outside, 
the export of revolution by one country 
to another. Exported revolution is just 
one specific form of aggression. 

But is the problem quite that simple? 
What actions constitute the "export" of 
revolution? Consider for a moment a 
few among the possible wide range of 
activities which China, Russia, or Cuba 
might take in relation to a country ripe 



for revolution. First might come a 
propaganda campaign— in the presses, 
over the radio, at diplomatic con- 
ferences, perhaps in the United Nations. 
Perhaps part of this program, possibly 
separate and distinct from it, might be 
threats as to what action might be taken 
if the revolution is not allowed to 
blossom. Next might come the receiving 
and training of revolutionaries, nationals 
of the country involved. Is the training 
of "students" in Cuba "interventional^ 
aggression" towards Venezuela? Next, 
might come the supplying of materiel to 
the revolutionary group, varying from 
literature and food to arms. Next might 
come the sending of a few "volunteers" 
to help organize and train the rebels- 
next, permission to use Cuba as a haven 
for the indigenous rebel forces— and so 
on. Where, in this list of actions, does 
subversive aggression begin? 

Let us pause for a moment, and look 
briefly at the teachings of classical 
international law. Has a practice de- 
veloped which can be appropriately 
used today as a yardstick in our battle 
with wars of liberation? 

The cornerstone of traditional inter- 
national law is the concept of state 
sovereignty— that is to say that, for the 
most part, a state is entitled to manage 
its own affairs free from direction or 
intervention from outside states. This 
particular concept is enshrined in 
Article 2(7) of the United Nations 
Charter: "Nothing contained in the 
present Charter shall authorize the 
United Nations to intervene in matters 
which are essentially within the domes- 
tic jurisdiction of any state . . .."At the 
very next level of abstraction, this prin- 
ciple requires that each state and the 
people of that state be free to determine 
their own form of government, free 
from any such external interference. 
Said Professor Friedmann, one of the 
most prestigious writers on international 
law in this country, only last year: 
' . . . any attempt by a foreign power to 
interfere with internal change, either by 



109 



assisting rebels to overthrow the legiti- 
mate government, or by helping the 
incumbent government to suppress a 
revolution is contrary to international 
law." Now I want you to note this 
statement carefully. First, it makes clear 
what the consensus of writing for centu- 
ries has made clear— that for an outside 
state to lend assistance to a group of 
rebels is to interfere illegally in the 
internal affairs of the state in revolt. 
Second, it makes assistance to the gov- 
ernment in power resisting such revolt 
equally as illegal as interference or 
intervention. Third, what is proscribed 
is "interference with internal change," a 
phrase pregnant with triplets of am- 
biguity. What this particular quotation 
does not say is that while states and 
state departments for centuries have 
been uttering these propositions, many 
of the same states have, with some 
degree of regularity, been conducting 
their practice against very different cri- 
teria. The authors of the Holy Alliance 
in 1815, the Emperors of Russia, 
Austria, and the King of Prussia, essayed 
a somewhat more practical statement of 
policy by claiming the right to interfere 
in the internal affairs of any country 
threatened by revolution against the 
legitimate sovereign. You will recall that 
the Monroe Doctrine was formulated as 
a response to that policy. 

Now let me illustrate what some of 
our own American authors are currently 
doing with this material. Says the same 
Professor Friedmann in another recent 
article: 

Since many of the internal con- 
flicts, such as the internal dis- 
orders in Cyprus or the Congo, 
have international implications 
and may lead to the intervention 
of antagonistic powers on dif- 
ferent sides of the conflict, non- 
intervention on the part of out- 
side powers is the most desirable 
international policy which should, 
as far as possible, be ensured by 
nonintervention agreements be- 



tween those concerned. The role 
of the United Nations in these 
conflicts will essentially be that of 
a neutral forum for mediation. In 
case of major intervention by out- 
side powers, the U.N. may have to 
be called in to keep the opposing 
interventionists at arm's 
length . . .. 3 
Says Professor Falk of Princeton Univer- 
sity: 

. . . internal war rages in South 
Vietnam, initiated by a series of 
rather clandestine North Vietna- 
mese guerrilla interventions and 
countered by strident American 
military intervention in apparent 
violation of the 1954 Geneva 
Accords. Interventionary policy 
accounts for the most intense 
forms of violent conflict present 
in the world today. 

The point is not to condemn these 
interventions, but to suggest that a 
foreign policy that depends upon 
unilateral military interventions 
by one nation in the affairs of 
another usually violates clear 
norms of international law .... 
The willingness of the United 
States to adopt illegal interven- 
tionary tactics, under the pressure 
of the cold war, jeopardizes our 
moral commitment to a foreign 
policy of law-abidance, a commit- 
ment abstractly reiterated by our 
statesmen from many rostrums. 4 

Instead, he suggests this solution: 
But international peace is not 
only threatened by internal war- 
fare. Peace is also endangered by 
certain repressive social policies 
which, if allowed to remain 
unaltered, will produce serious 
outbreaks of domestic violence. 
This prospect prompts the central 
contention of this essay— that the 
United Nations should be au- 
thorized on a selective basis to 
coerce domestic social changes. 



110 



This authorization is what we 
refer to throughout as legislative 
intervention. 

It is interesting that, according to his 
argument, what would be prohibited 
intervention by one state becomes legal 
when done in the name of the United 
Nations. 

The reason for giving you these 
lengthy quotations is this: With respect, 
I suggest that these scholars are striving 
for some "neutral" principles by which 
the affairs of the world can, in the 
future, be peacefully regulated. The 
search for such scholarly principles may 
be important, but it fails substantially as 
an exercise in psychological warfare, 
just as it apparently fails in an estimate 
of political motivation in the world 
today. 

But notice how this search for neu- 
tral principles can distract attention 
from a point of cardinal importance. If 
intervention in internal affairs of a state 
is illegal, what facts must be established 
to constitute proof of such intervention, 
and what remedies are available once a 
case of such intervention has been estab- 
lished? Given a clear plan of action for 
wars of liberation as described by Lin 
Piao, surely the obvious psychological 
counter, and surely a point of scholarly 
concern, focuses on development of 
criteria or standards for measuring ex- 
ternal meddling, and on remedies for 
violation of those standards. And I 
may say that the search for a remedy 
that does not at the same time kill the 
patient, is a task of monumental propor- 
tions. 

Let me say again, however, that it is 
important that such criteria be de- 
veloped and argued, not in the belief 
that Lin Piao will be convinced and will 
change his mind, but rather as neces- 
saries to answer foreign propaganda, or 
for that matter, for our own domestic 
consumption. Given the threat as de- 
fined by Khrushchev, Guevara, and Lin 
Piao, I would also suggest that our 
psychological response must involve the 



reworking of the classic statement made 
by Friedmann. We cannot afford en- 
dorsing a policy which may preclude 
assistance to a government in power in 
an effort to combat incipient stages of 
subversion. At the same time, the state- 
ment of criteria for such assistance again 
involves a monumental problem— to give 
such support for the purpose of 
countering subversion may at the same 
time have the effect of impeding a truly 
indigenous movement for social reform. 
If some of our writers have been 
more concerned with standards for a 
law-abiding world than with developing 
a psychological response to the concept 
of people's war and wars of liberation, 
what have the Russians been doing? In a 
text on international law written in 
Moscow and obligingly translated by the 
Russians into English and distributed 
here in 1962, is to be found a discussion 
of the so-called Principles of Peaceful 
Coexistence. The Principles represent 
the latest Russian use of legal analysis 
for psychological purposes. You may, 
for instance, be surprised to learn that: 
Important principles of Interna- 
tional Law such as the sovereign 
equality of States, the self- 
determination of nations, non- 
interference in the internal affairs 
of other countries, territorial in- 
tegrity, peaceful coexistence and 
cooperation between States re- 
gardless of their social systems 
and the conscientious observance 
of obligations assumed became 
the guiding principles of the 
worlds first socialist State in its 
international relations. 
You may also be surprised at the follow- 
ing expansion on this theme: 

The recognition of each people's 
right to be master in its own 
country— that is, its unconditional 
right itself to decide its own social 
and political system and to deter- 
mine its internal and foreign 
policy without any interference 
whatsoever by other States— offers 



Ill 



wide opportunities for fruitful 
peaceful and mutually advan- 
tageous cooperation between 
States, regardless of differences in 
their social systems. In this lies 
the importance of the principle of 
nonintervention in the present- 
day world. 8 
Professor Lipson of Yale has offered an 
especially shrewd evaluation of the 
psychological use by the Russians of 
these concepts of peaceful coexistence. 
He suggests that they are skillfully 
blended to appeal first to the nationalist 
aspirations of colonial and under- 
developed countries to make their own 
way free, not only politically, but also 
economically. Next they are designed to 
appeal to audiences in the United States 
and other western countries who would 
like to see a lessening of tension, accom- 
panied probably by disarmament or 
reduction in military effort. Again, they 
appeal to the Russian audience because 
of the ideological split with China. 
These are words of peaceful competi- 
tion with the West, rather than head- 
strong willful risk of nuclear war. In 
short, the Principles of Peaceful Co- 
existence are a masterful concoction of 
psychological warfare. But notice the 
gap between the promise and the fact. 
Again, our counter seems to lie in 
formulating the extent of that gap and 
giving it factual documentation. 

Of course, the authors of this 
Russian text could not foresee that 
Lin Piao would get a little out of 
step in his speech, "Long Live the 
Victory of the People's War." Says 
he: 

In the final analysis, the whole 
cause of world revolution hinges 
on the revolutionary struggles of 
the Asian, African, and Latin 
American peoples who make up 
the overwhelming majority of the 
world's population. The socialist 
countries should regard it as their 
internationalist duty to support 
the people's revolutionary 



struggles in Asia, Africa, and Latin 
America. 10 
None of this, I take it, is intended to 
amount to interference in the internal 
affairs of another state. 

But enough of these relative abstrac- 
tions. Let us come down to a couple of 
specific illustrations of the importance 
of legal argument in support of our 
political and military decisions and 
actions. Let us see something of the use 
to which argumentation, both foreign 
and domestic, puts legal-style analysis 
and something of the kind of response 
which is required of us. In the mail the 
other day, I received an "Appeal to the 
Lawyers of the World" from the Inter- 
national Association of Democratic 
Lawyers, whose headquarters is in Brus- 
sels. This constitutes: 

... a solemn appeal to our col- 
leagues in the whole world urging 
them to condemn the numerous 
and grave violations on interna- 
tional law by the war waged 
against the Vietnamese people by 
American imperialism. 

(1) International law is violated 
by the systematic intervention of 
the U.S.A. in the international 
affairs of South Vietnam; by the 
installation of governments of 
their choice, that are neither en- 
joying the confidence of the 
people, nor being appointed 
democratically, in contravention 
of point 12 of the final declara- 
tion of the Geneva Conference 
held in 1954 which was solemnly 
agreed to by the representative of 
the United States, Mr. Bedell 
Smith, in the name of his govern- 
ment. 

(2) International law is violated 
by the military aggression 
launched by the United States 
against Vietnam; by the landing in 
South Vietnam of foreign troops 
that include U.S. nationals and 



112 



units from S.E.A.T.O. or 
A.N.Z.U.S. countries, committing 
acts of war also against the Demo- 
cratic Republic of Vietnam, 
equally in contravention of point 
12 already mentioned. 

(3) International law is violated 
when in the course of this aggres- 
sive war the United States is de- 
stroying schools, libraries, pa- 
godas, churches and hospitals 
under the false pretext of pur- 
suing military aims; when the 
American troops are making use 
of horrible and prohibited 
weapons such as noxious gases, 
napalm, yellow phosphorous 
bombs, dumdum bullets. All these 
inhuman methods were banned by 
the Hague Conventions of 1899 
and by other international norms, 
e.g., the Versailles Treaty of 28 
June 1919 (art. 171), or the 
Geneva Agreement of 17 July 
1925. 

(4) International law is violated 
when prisoners are submitted to 
humiliating and degrading treat- 
ment by the American troops, or 
are savagely killed without judg- 
ment nor the legal guarantees 
recognized as obligatory by all 
civilized nations as well as by art. 
3 of the Geneva Agreement of 12 
August 1949; or when the same 
American troops massacre the 
civil population and submit them 
to barbarous tortures. 1 

And so on— the hand behind the pen is 
clear. 

Now, you are probably saying, that is 
a concoction of lies to which our 
response should be simply that- 
answering such a document involves no 
exercise in legal analysis and applied 
psychology. To a considerable extent 
you would be correct. But notice the 
subtlety with which some of the issues 
are woven in. Let us just take as an 



example, the first paragraph I read you. 
That we have a large army in Vietnam is 
clear, and that the presence of such an 
army has a substantial effect on the 
internal affairs of Vietnam is equally 
clear. Is this "intervention"? Well, you 
say, our response rests on the fact that 
we were requested to help by the 
Vietnamese government. But then 
notice that the same paragraph suggests 
that our host or inviting government is 
in fact our own puppet, which has not 
been "democratically appointed" in ac- 
cordance with the Geneva Accord of 
1954. You suspect that the Ky regime 
was, in fact, not appointed by a 51 
percent or better majority of every 
adult entitled and willing to vote in 
South Vietnam, So to counter this, you 
begin an argument that, in an under- 
developed and undereducated country 
or community, full-flowered democracy 
is a factual impossibility. Besides, you 
say, look at Ho Chi Minh. Now this 
second argument is interesting. With the 
audiences to which this material is 
presented, the argument that the other 
side is doing the same bad things, is 
peculiarly unpersuasive. The first argu- 
ment is the one which needs to be 
presented, but notice the technique. 
The charges are so framed, that an 
accurate response becomes so detailed, 
intricate, and tied in with legal argumen- 
tation that the audience may be lost in 
the middle of the answer. 

The aim of this material is to con- 
fuse. And the answer or psychological 
counter is not a point by point refuta- 
tion of their thesis— rather, it should or 
even must be found in a coherent 
policy. We should be in a position to 
explain what that policy is— that it has a 
measure of objectivity— that is to say 
that it is not an action adopted ad hoc, 
but is the application of principles 
established as such and consistently 
advocated and followed by us in our 
foreign relations. Such a policy requires 
focusing on the concept of "war of 
liberation," upon the fact of external 



113 



interference with the political balance in 
South Vietnam by Ho Chi Minh and the 
Chinese— this involves the development 
of criteria, mentioned earlier, against 
which we can judge and establish such 
interference, and it requires the develop- 
ment and advocacy of remedies to be 
taken in the face of such interference 
violative of our proclaimed standards. 
Law is the antithesis of arbitrary action 
—and legal analysis and argumentation, 
to be persuasive, must be founded in 
consistency of principle and, as far as 
possible, in application of such princi- 
ple. 

Now, you are probably saying, who 
needs to respond to a position like that 
of the International Association of 
Democratic Lawyers? It is, and this 
must be patent to the reader, a tissue of 
lies. First, you are on notice that the 
Russians are a careful, calculating group, 
who do not do many things without 
apparent object. They think this kind of 
propaganda is worthwhile— be careful of 
underestimating their judgment. Re- 
member the message of this counter- 
insurgency program— that the battle is 
one for people, and the people of that 
phrase are being exposed to this kind of 
argumentation. That it needs answering 
in foreign audiences can best be illus- 
trated by referring to the extent to 
which some of the arguments therein 
advanced have received a measure of 
support and sympathy within our very 
own country. Let me read to you a 
short passage from a speech delivered on 
September 23, 1965: 

In Vietnam, we have totally 
flouted the rule of law, and we 
have flouted the United Nations 
Charter. This lip service given by 
the United States to the United 
Nations and its international law 
provisions and procedures has 
done our country great injury 
among many international lawyers 
around the world. Our waging an 
undeclared war in southeast Asia 
in flagrant violation of our oft- 



ex pressed pretense that the 
United States stands for the sub- 
stitution of the rule of law for the 
jungle law of the military claw in 
meeting threats to the peace of 
the world, has done great damage 
to our reputation for reliability in 
international affairs. Our good 
reputation in world affairs previ- 
ously held by millions of people 
in the underdeveloped areas of the 
world has been tarnished by our 
unjustified warmaking in south- 
east Asia. 12 
These are words of the Honorable 
Wayne Morse spoken on the floor of our 
Senate. It seems we have something of a 
missionary job to do in our own coun- 
try! 

Now, for a second illustration of the 
importance of legal analysis, let us look 
at another recent counterinsurgency 
situation— the Dominican Republic. 
Remember that the thesis is this: Our 
political and military actions need to be 
explained by an argument of their 
legality presented as persuasively as pos- 
sible. 

What we had, obviously, in the 
Dominican Republic, was an incipient 
political revolution. I take it that there 
was and is little doubt that substantial 
numbers of citizens of the Dominican 
Republic were so dissatisfied with their 
existing government that they proposed 
to resort to revolution as an answer. Our 
problem was equally obvious. The exist- 
ence of a fighting civil war provides an 
excellent opportunity for communist 
trained, and perhaps even exported, 
leaders to penetrate and then take over 
one of the forces in the revolution. The 
communist handbook is simple and 
direct in ordering party members to 
capitalize, however and whenever pos- 
sible, on issues that are politically 
divisive. Their ability to so capitalize 
can be illustrated all the way from 
Cuba, even to perhaps some of our 
university campuses. But, and this is 
important, we were not in a position to 



114 



den) that there was an indigenous revo- 
lution that people of the Republic 
were asserting their freedom, as a last 
resort, to revolt against what they con- 
sidered to be an unfair and unrepresen- 
tative government What then, could we 
make by way of legal argument to 
explain that our intervention was not 
inconsistent with or destructive of this 
inherent right of revolution, while still 
taking steps of military intervention 
deemed by our government necessary to 
prevent communist subversion of this 
indigenous revolution? Said Mr. Meeker, 
the Legal Adviser to the State Depart- 
ment: 

We landed troops in the Domini- 
can Republic in order to preserve 
the lives of foreign nationals- 
nationals of the United States and 
many other countries. We con- 
tinued our military presence in 
the Dominican Republic for the 
additional purpose of preserving 
the capacity of the OAS to func- 
tion in the manner intended by 
the OAS Charter— to achieve 
peace and justice through securing 
a cease-fire and through reestab- 
lishing orderly political processes 
within which Dominicans could 
choose their own government, 
free from outside interference. 
Now this statement of our position is 
not without its difficulties, in terms of 
psychological persuasion. Notice first, 
its apparent inconsistency with the con- 
cept of ultimate freedom of revolt. This 
appears to say that if you revolt, we 
reserve the right to step in and prevent 
the fighting so that a new government 
may be chosen democratically, i.e., by 
supervised voting, after debate and dis- 
cussion of the problem and the pro- 
posed party platforms. This indeed, is 
the advocacy of a principle considerably 
adapted from that of the ultimate free- 
dom to revolt. Notice also, that any 
such "police" intervention may have a 
significant effect on the relative strength 
in any subsequent election of the 



government previously in power and the 
rebel group. 

The cornerstone of our political and 
military decision is clear. We are all too 
well acquainted with the communist 
pattern of infiltration and subversion, 
and for our purposes, it does not much 
matter whether that infiltration is ef- 
fected by Dominicans or by communist 
operatives brought in from other coun- 
tries. The thing that counts in the end is 
simply this: Does the government ulti- 
mately achieving power answer directly 
to communist centers? Is it subservient 
to communist control, and will it take 
communist steps to prevent any future 
unfortunate revolt or attempt a demo- 
cratic selection of government? In short, 
will the establishment of such govern- 
ment preclude for the future a free 
demonstration of political choice by the 
people of the country? 

The selection of a cornerstone of 
legal analysis, of the most persuasive 
argument in explanation of this policy, 
is much more complex. Our statement 
and repetition of patterns of communist 
behavior fails to persuade many of our 
own citizens, let alone many Latin 
American audiences. Moscow says they 
did not have anything to do with a 
take-over of any revolution, and we, as 
the active intervening parties, are sud- 
denly cast with the burden of proof to 
establish as the price of legalizing our 
position, that, in fact, the revolution 
was being substantially affected or con- 
trolled by infiltrated communist opera- 
tives. That is no mean burden of proof. 

On the other hand, if (and I am not 
necessarily saying we should), we 
adopted the following proposition as 
our neutral principle or policy, we could 
avoid the foregoing burden of proof 
problem. That principle might be: Wher- 
ever possible, widespread civil war and 
bloodshed should be forestalled by in- 
tervention of a police force designed to 
keep the peace while at the same time 
laying a basis for future democratically 
organized and supervised elections. We 



115 



could then rely simply on the outbreak 
of substantial civil war and widespread 
bloodshed and breakdown of the essen- 
tial processes of government. For such a 
principle to be effective, however, we 
have to be in a position to argue that 
this is not a policy conceived on the 
spur of the moment to take care of this 
specific incident— in short, that it is a 
policy we plan on adhering to con- 
sistently. And if this policy were to be 
selected as such principle, it must be 
capable of withstanding analysis and 
criticism. 

Without looking up any official docu- 
ment on statement, I could give you the 
gist of a Russian response. But, in this 
instance, that is unnecessary since we 
have vocal criticism of the policy in the 
Dominican Republic right here at home. 
Our policies or principles are being put 
to the test of analysis and criticism right 
here, as well as before foreign audiences. 
Senator Fulbright has said of our 
actions there: 

The prospect of an election in 
nine months, which may conceiv- 
ably produce a strong democratic 
government, is certainly reassuring 
on this score, but the [fact] re- 
mains that the reaction of the 
United States at the time of acute 
crisis was to intervene forcibly 
and illegally against a revolution, 
which, had we sought to influence 
it instead of suppressing it, might 
have produced a strong popular 
government without foreign mili- 
tary intervention. 

Since just about every revolu- 
tionary movement is likely to 
attract Communist support, at 
least in the beginning, the ap- 
proach followed in the Dominican 
Republic, if consistently pursued, 
must inevitably make us the 
enemy of all revolutions and 
therefore the ally of all the un- 
popular and corrupt oligarchies of 
the hemisphere. 1 



In contrast, Under Secretary of State 
Mann has said: 

When in other words, a Commu- 
nist state has intervened in the 
internal affairs of an American 
state by training, directing, fi- 
nancing, and organizing indige- 
nous Communist elements to take 
control of the government of an 
American state by force and vio- 
lence, should other American 
states be powerless to lend assis- 
tance? Are Communists free to 
intervene while democratic states 
are powerless to frustrate that 
intervention? 1 5 

From the point of view of legal 
analysis and persuasive argument, both 
these statements are interesting. The 
Senator's statement brands our action as 
"illegal," without amplification. That 
such amplification could be provided is 
clear. The introduction of our army into 
the country of another state calls for 
the clearest of supporting arguments to 
escape the charge of illegality. And the 
fact that a political faction in the 
Dominican Republic decided to invite 
us adds a little, but not very much in 
the circumstances, to our position. On 
the other hand, Secretary Mann's analy- 
sis assumes that communist "indoctrina- 
tion" of certain political rebels, who 
might very well have been natives of the 
Republic, constituted intervention 
which, impliedly, authorized us to take 
a counterremedy in the form of an 
armed landing. Perhaps, in the long run, 
the most persuasive argument runs along 
lines suggested by Mr. Mann, rather than 
along lines of a principle of preventing 
bloodshed and facilitating free elections. 
Suffice it to say that we need a 
coherent and consistent policy. Senator 
Fulbright underlines the importance of 
such a policy consistently applied when 
he says that potential revolutionaries in 
Latin America may regard our action in 
the Dominican Republic as an explicit 
declaration of our position in favor of 
status quo government, no matter how 



116 



bad it may be, and against revolution. 
And so, wc come back full circle to the 
problem: how to formulate a policy to 
best support our political and military 
decisions taken in the context of coun- 
terinsurgency— how to distinguish in 
that policy between freedom of revolu- 
tion and proscription of wars of libera- 
tion and people's war. 

That problem is reported to be under 
consideration in our discussions with 
Latin American countries, as late as last 
Thursday. The New York Times of that 
day carries a story of Mexican views 
on a proposal for collective Latin 
American action in the event of com- 
plete breakdown of order and authority 
in one of the OAS states. 

Fortunately, this morning, I have the 
luxury of criticizing the statements and 
writings of others, without any accom- 
panying responsibility for defining 
policy goals in this area. There are, 
however, several factors which will, in 
my opinion, continue to affect the 
search for most effective policies and 
legal analyses to counter the threats 
posed by wars of liberation. 

First, the persuasiveness of any legal 
analysis is important to our domestic 
population. The ability to offer a clear 
and consistent purpose, rationale, and 
demonstration of its application to any 
current fact situation will have signifi- 
cant impact on the domestic support 
which political and military decisions 
receive from our own population. For 
this reason, such purposes and policies 
must be consistent with our domestic 
governmental ethic. That ethic clearly 
believes in a right of revolution, and in 
the right of a people to choose their 
own form of government This means 
freedom from communist subversion, 
but it also means freedom from United 
States support of unpopular and dicta- 
torial regimes. Our counterinsurgency 
policy deals with stability of govern- 
ments, but it must be so framed as to 
distinguish, as far as is possible, between 
indigenous revolution and communist 



subversion. Not every act of subversion 
can be allowed to taint a revolutionary 
group and we must refine a policy 
tailored to identify and brand those 
aspects of wars of liberation which seek 
to climb on the back of an indigneous 
movement. 

Second, to be as persuasive as pos- 
sible, our policy must seek to share 
counterinsurgency responsibility, as far 
and as widely as possible. By way of 
illustration, the function of a lawyer in 
the Department of State would have 
been fantastically easier if the force 
which went into the Dominican Repub- 
lic had been an OAS force, sent there 
pursuant to a resolution of that organi- 
zation, and in implementation of a 
stable and consistent policy against in- 
surgency formulated by that organiza- 
tion. Such a sharing of responsibility 
requires that our policy be consistent 
then, not only with our own domestic 
ethic, but consistent, as far as is pos- 
sible, with corresponding ethics outside 
the communist countries. We must 
recognize that in these other countries, 
which in many cases are backward and 
underdeveloped, revolution continues to 
play an important function in change 
and reform of government. Our policy 
cannot condemn revolution as such, 
even when accompanied by bloodshed, 
nor can it condemn revolution merely 
on the grounds that communist groups 
have joined in with it. 

Third, that policy must bring sharply 
into focus not only the problem of 
identifying what constitutes illegal inter- 
vention through communist subversion, 
but also the ingredients of appropriate 
remedies for any such violation of the 
established policy. 

Fourth, we must recognize that con- 
sistent application of this policy is 
important, and that departures from it, 
to meet the stresses of ad hoc situations 
of the moment, may be very costly in 
the long-run effectiveness of the psycho- 
logical purpose. 

Fifth, we must continue to recognize 



117 

that such a policy does serve a psycholog- standards to govern in a perfect law-abid- 

ical purpose of importance both with our ing world, but rather to meet the practi- 

own people and abroad. But the object of cal day-to-day threats posed, and to be 

having the policy is not to seek abstract posed, by wars of liberation. 

NOTES 

1. Dictionary of United States Military Terms for Joint Usage, 1 Feb. 1964, JCS Pub. 1. 

2. The Changing Structure of International Law, Columbia University Press, 1964, at p. 
265. 

3. "The Role of International Law in the Conduct of International Affairs," 20 
International Journal, 1965, p. 158 at p. 167. 

4. "The Legitimacy of Legislative Intervention by the United Nations," in Essays on 
Intervention, ed. by Roland J. Stanger, Ohio State University Press, 1964, at p. 34. 

5. Ibid., at 33. 

6. See, for instance, Fisher, "Intervention: Three Problems of Policy and Law," ibid., at 7 
et seq. 

7. International Law, Foreign Languages Publishing House, Moscow, 1962(?) at p. 9. 

8. Ibid., at p. 114. 

9. "Peaceful Coexistence," 29 Law and Contemporary Problems, p. 871 (1964). 

10. Foreign Broadcast Information Service, 3 September 1965. 

11. No attempt is here made to identify and correct the numerous false statements, 
misrepresentations and half-truths contained in the above statement. 

12. 89th Congress, 1st Sess., September 23, 1965. 

13. "The Dominican Situation in the Perspective of International Law," Vol. 53, 
Department of State Bulletin, 12 July 1965 at p. 62. 

14. As reported in The New York Times, 16 September 1965. 

15. "The Dominican Crisis: Correcting Some Misconceptions," Vol. 53, Department of 
State Bulletin, 8 November 1965 at p. 731. 

16. 9 December 1965. 



118 



INTERVENTION AND DETENTE 



IN AMERICAN FOREIGN POLICY 



Robert S. Wood 



In the century after the 1648 Treaty 
of Westphalia, the European state sys- 
tem was established on the basis of the 
political principle of territoriality and of 
the legal principle of sovereign equality. 
The former notion entailed the effective 
control by the major princes within 
established territorial limits and the 
second concept established the norm of 
complete political jurisdiction by the 
prince and his government within these 
territorial boundaries unencumbered by 
any earthly, external authority. Al- 
though states were unequal in material 
capabilities and political influence, they 
confronted each other in the interna- 
tional arena under the obligation to 
recognize each other as masters within 
their territorial domains. And, in the 
intercourse of nations, agreements were 
to be based on the norm of contracts, 
explicit or implicit, among equal part- 
ners, whatever the actual power political 



realities underlying their calculus. States 
organized according to exclusive in- 
ternal authority and interstate relations 
organized not by a supranational power 
but by the sovereign agreement of these 
states-this was to be the pattern of 
modern international relations. Linked 
with this pattern were the notions of 
nonintervention and domestic jurisdic- 
tion-princes may meet each other in 
battle and adjust the political map of 
Europe but they must resist the urge to 
influence too blatantly the character of 
each other's type of regime and ideo- 
logical commitment by direct or covert 
intervention. That this conception of 
international affairs was only im- 
perfectly realized is obvious but that it 
provided an influential normative frame 
of action is also clear. 

The evolution of the principles of the 
modern state system is attributable in 
the first instance to the experiences of 



119 



the emergent states from the 14th to 
the 16th centuries. The attempt by the 
various princes to separate their do- 
mains from an empire and a church with 
supranational pretensions and the divi- 
sion of Christendom in the reformation, 
suffused the politics of the period with 
a harsh ideological cast and rendered 
problematical political regimes and terri- 
torial boundaries, all of which culmi- 
nated in the Thirty Years' War. The 
partial stalemate among states and the 
jeopardy in which intervention placed 
every regime persuaded Europe's politi- 
cal leadership to evolve a system which 
would better guarantee the stability of 
the states. The key was to separate 
international relations from internal 
politics. The separation was never com- 
plete and the smaller states were never 
as certainly covered by the new norms 
as the great states, but international 
relations in rough-and-ready fashion did 
conform to the new pattern until the 
wars of the French Revolution and 
Napoleon. 

With the French Revolution, the 
nature and character of regimes became 
again a stake in the international con- 
flict and ideological concerns once again 
interacted with power political motives. 
The defeat of Napoleon largely restored 
the prerevolutionary notions which, 
despite the strains of nationalism, class 
ideologies, and racial doctrines, per- 
sisted until World War I. Since that great 
war, however, the world has been buf- 
feted by supranational ideologies and 
ambitions cloaked in universal principles 
whose very intensity erodes political 
boundaries and casts in doubt the dis- 
tinction between domestic and interna- 
tional politics. Moreover, with the rise 
of a multitude of weak and divided 
states unable to establish domestic order 
and resist foreign incursions, the prob- 
lem of distinguishing levels of political 
activity and limiting political ambitions 
has been exacerbated. Some have 
further cited the interdependence of the 
international economy as another 



element -in the erosion of the classical 
principles of the modern state system. 
In such a "revolutionary" situation, 
then, what is the role of the doctrine of 
nonintervention? 

Henry Kissinger and Noninterven- 
tion: From Cold War To Detente. In a 

real sense, the cold war is a result of the 
convergence of ideology and ambition 
such as characterized the period prior to 
the Peace of Westphalia and the French 
Revolutionary-Napoleonic Wars. The 
Truman Doctrine and the Marshall Plan 
were thus elements in an increasingly 
global revolutionary struggle the objec- 
tive of whose combatants was not only 
extended direct territorial control but 
modification of political regimes and 
socioeconomic structures. In such a 
context, American support, covert and 
open, to liberal political forces in 
Western Europe was seen by the con- 
cerned public as both necessary and 
proper. Even the extension of assistance 
to regimes more authoritarian in nature 
was widely seen as a justifiable attempt 
to limit Soviet influence. 

The experiences of Vietnam and the 
political as well as economic costs of 
intervention in areas of high political 
instability led many opinion leaders, 
however, to reassess America's interna- 
tional role. There simultaneously oc- 
curred a parallel reevaluation by some 
Western commentators of Soviet ambi- 
tions. The convergence of these trends is 
most visibly seen in the detente policy 
of the Secretary of State Henry Kissin- 
ger. 

If American foreign policy since 
World War II has been largely inspired 
by polar confrontation and doctrines of 
political and economic reconstruction 
and nation-building among the non- 
Communist states, recent detente policy 
is aimed in the words of its primary 
expositor, Henry Kissinger, at the en- 
couragement of "an environment in 
which competitors can regulate and 
restrain their differences and ultimately 



120 



move from competition to coopera- 
tion." 1 The primary focus of American 
policy thus becomes less the contain- 
ment-and, in effect, isolation-of the 
Soviet Union than the development of a 
nexus of relations which are designed to 
"create a vested interest in cooperation 
and restraint." 2 And whereas the earlier 
containment doctrine largely repre- 
sented a negative policy vis-a-vis the 
East and placed dominant emphasis on 
the development and maintenance of 
alliance ties with Western Europe, 
Japan, and other states of important 
strategic interest, the practical result of 
recent policy is to reverse the emphasis 
and increasingly assess our alliance rela- 
tions in terms of their contribution to 
Soviet-American detente. 

This approach is ultimately founded 
on three assumptions: First, that in the 
words of the Secretary of State "the 
Soviet Union has begun to practice 
foreign policy-at least partially-as a 
relationship between states rather than 
as international civil war" 3 and that, in 
any case, common interests in survival 
and some degree of predictability are 
more important factors in U.S. -Soviet 
relations than basic changes in their 
regimes or ideological motivations; 
second, that a strong Western military 
posture and a continuing intimacy 
within the Western alliance will be 
maintained; and, third, that a separation 
between domestic and international 
politics and a clearer acceptance of 
spheres of influence in the policies of 
the Soviet Union and the United States 
can be established. 

In a recent reply to those critics who 
assert that political and economic con- 
cessions by the United States to the 
Soviet Union should be linked to a 
modification of Soviet domestic policies 
of emigration and, perhaps, dissent, 
Secretary of State Henry Kissinger 
argues: "Where the age-old antagonism 
between freedom and tyranny is con- 
cerned, we are not neutral. But other 
imperatives impose limits on our ability 



to produce internal changes in foreign 
countries. Consciousness of our limits is 
recognition of the necessity of peace - 
not moral callousness." 4 In effect, Dr. 
Kissinger contends that a stable interna- 
tional system thus depends in this view 
on an agreement about international 
rules of behavior- not a common notion 
of justice which could well place in 
doubt the authority of the several 
regimes comprising the system. To 
attempt to devise agreements which 
establish both rules of international 
conduct and norms of domestic recti- 
tude is seen as likely to increase frustra- 
tion and exacerbate conflict, especially 
in an international environment charac- 
terized by fundamentally different 
regimes. At the same time, however, it is 
clear that Dr. Kissinger has not elevated 
the doctrine of nonintervention to a 
categorical imperative but limits it to 
great power, i.e., Soviet- American, rela- 
tions and couples the notion with an 
implicit understanding on spheres of 
influence. The distinction between 
domestic and international politics and 
the concomitant rule of nonintervention 
are thus prudential and limited rather 
than principles and universal. It is not 
that an absolute doctrine of noninter- 
vention is simply rejected in the abstract 
but that conditions of state security, as 
well as state aspirations, are viewed as 
ruling out complete submission to such 
a precept. Indeed, the classical notion of 
power politics has always maintained a 
distinction between great and small 
powers and included concepts of 
spheres of influence. Inhibitions on 
ideological preferences and restrictions 
on direct interference in domestic 
politics arise in this view not from 
abstract notions of justice but from 
calculations of prudence -which do in- 
clude, it must be noted, the elaboration 
of prudential rules of international be- 
havior and guides for alliance main- 
tenance. In this conception then, Secre- 
tary Kissinger is not alone but in a long 
and dominant foreign policy tradition. 



121 



Although the imperative of noninter- 
vention is traditionally linked with the 
notions of legal sovereignty and 
equality, all three conceptions are ulti- 
mately founded on a situation of inter- 
national anarchy and on the principle of 
self-help. Both Naturalists and Positi- 
vists historically expressed this rela- 
tionship by reference to the doctrine of 
state "rights" which are not normative 
commands in any meaningful sense at 
all but simply prudential imperatives 
arising from the problem of self- 
preservation in the midst of anarchy. 
Such prudential imperatives need not, 
however, be calculations of short-term 
self-interest but in fact may demand 
attention to some modicum of predicta- 
bility and order in the international 
sphere and thus concern for the long- 
term implications of state actions. While 
anarchy may imply self-help, scholars 
and statesmen alike have been con- 
cerned with informing the notion of 
self-help with such restraints and limita- 
tions that it does not also entail chaos. 
Nonintervention is thus recommended 
less by reference to legal commitment 
than to prudential calculations. 5 

The Soviet Polity, Peaceful Co- 
existence, and the Doctrine of Noninter- 
vention. The concept of noninterven- 
tion espoused by Secretary Kissinger 
appears therefore to be motivated by 
calculations of prudence and qualified 
by an implicit doctrine of spheres of 
influence. An important question is 
whether or not the Soviet Union is 
animated by similar considerations. On 
the face of it, the statement by Leonid 
Brezhnev, General Secretary of the 
Soviet Communist party, before The 
Conference on Cooperation and Se- 
curity in Europe appears to accept a 
more unqualified and principled com- 
mitment to nonintervention. Speaking 
of the conference and its final act, Mr. 
Brezhnev declared: 

The experience of the work of the 
conference provides important 



conclusions for the future too. 
The major one that is reflected in 
the final document is this: No one 
should try to dictate to other 
peoples, on the basis of foreign 
policy considerations of one kind 
or another, the manner in which 
they ought to manage their in- 
ternal affairs. It is only the people 
of each given state, and no one 
else, that has the sovereign right 
to resolve its internal affairs and 
establish its internal laws. A dif- 
ferent approach is a flimsy and 
perilous ground for the course of 
international cooperation. 6 
By reiterating a principal provision of 
the conference declaration, some dele- 
gates were led to wonder whether Mos- 
cow was signaling its intention to forego 
its prerogative to intervene militarily in 
East Europe in order to maintain Com- 
munist governments friendly to the 
Soviet Union. Although Prime Minister 
Harold Wilson of Great Britain felt that 
such a declaration by the General Secre- 
tary would make invocation of the 
so-called Brezhnev doctrine more diffi- 
cult in the future, most observers ap- 
parently believed that the real intent of 
the statement was to inform the West 
that the human rights section of the 
conference declaration could not be 
used to press for the liberalization of 
the East European regimes. If this latter 
interpretation is accepted, it might still 
be argued that Brezhnev was, however, 
prepared to accept a generalized non- 
intervention doctrine also qualified by a 
sphere of influence notion. If so, this 
convergence of views, along with the 
fear of nuclear war, might provide a 
basis for a long-term Soviet-American 
detente. One can be excused for some 
degree of skepticism on this point as 
well. 

The Soviets have consistently insisted 
that "the sphere of class and national- 
liberation struggle" cannot be brought 
within "peaceful coexistence" and that, 
indeed, detente has given "a powerful 



122 



impulse to the national-liberation move- 
ment of colonial and oppressed 
peoples." Brezhnev has argued that 
detente is a result of "a new relationship 
of forces"- that is, the ascendency of 
the Soviet-Socialist forces. Hence, as an 
Izvestia commentator recently con- 
tended, "the process of detente does 
not mean and never meant the freezing 
of the social-political status quo in the 
world" and in fact nothing could or 
should prevent the Soviet Union from 
giving "sympathy, compassion, and sup- 
port" to these forces of "national- 
liberation." In this view, then, detente 
or peaceful coexistence involves direct 
state relations between the United 
States and the Soviet Union, particu- 
larly in the strategic area, but is not 
designed to prevent Soviet support for 
"favorable developments" in various 
third states. 7 

The American Polity, Contemporary 
International Politics, and the Doctrine 
of Nonintervention. If some commenta- 
tors doubt the commitment of the 
Soviet regime to a doctrine of noninter- 
vention, even one qualified by notions 
of spheres of influence, we can also 
justly raise questions whether such a 
doctrine is compatible with the charac- 
ter of the American polity. In a remark- 
able article entitled "Was Woodrow 
Wilson Right?" Daniel P. Moynihan 
argued: 

Wilson conceived of patriotism 
not as an instrument of the state, 
but as an expression and exten- 
sion of the moral capacities of the 
individual, specifically of men 
seeking freedom in its many mani- 
festations. He saw that in the age 
then commencing such a patriot- 
ism would be meaningful only as 
it manifested itself in a world 
setting, engaging its energies in a 
world struggle. Democracy in one 
country was not enough simply 
because it would not last. In 
20th-century America Wil- 



sonianism has been disparaged for 
enthusiasm, much as high Angli- 
cans disapproved of the Meth- 
odists of 18th-century England. 
And yet the Methodists, had they 
been ordained, almost surely 
would have kept the English 
people in the church, and possibly 
also their bishops. Instead the 
people wandered away into 
nothingness. Does not the Ameri- 
can faith in democracy face some- 
thing of this dilemma, and are we 
not adopting much the same 
course at the silent behest of men 
who know too much to believe 
anything in particular and opt 
instead for accommodations of 
reasonableness and urbanity that 
drain our world position of moral 
purpose? 8 

Wilsonianism expressed a belief com- 
mon from the early days of the Repub- 
lic-that the American experiment in 
government was not for the United 
States alone but provided a standard 
and harbinger for the nations of the 
world. Thomas Jefferson, reflecting on 
the meaning of the Declaration of Inde- 
pendence, wrote in 1826: 

May it be to the world what I 
believe it will be: to some parts 
sooner, to others later, but finally 
to all -the signal of arousing men 
to burst the chains . . . The mass 
of mankind has not been born 
with saddles on their backs for a 
favored few, booted and spurred, 
ready to ride them by the grace of 
God but to govern themselves by 
the grace of God, and they will by 
the grace of God. 9 

Abraham Lincoln speaking of the 
Declaration in 1861 expressed a similar 
belief: "Something in that Declaration 
[gave] liberty, not alone to the people 
of this country, but hope to the world 
for all future time. It was that which 
gave promise that in due time the 
weight should be lifted from the 
shoulders of all men, and that all should 



123 



have an equal chance." 10 Lincoln then 
expressed the belief that, while the 
Declaration offered a vision, it did not 
in itself provide guidance for the con- 
struction of free government. That task 
was only accomplished in the text of 
the Constitution of the United States. 
In similar vein, Americans have tradi- 
tionally viewed not only the Declaration 
of Independence as potentially universal 
in scope but also the principles and 
structures of constitutional government. 
The American experiment in constitu- 
tional democracy has thus been viewed 
not only in domestic but in global 
terms. 

In a real sense, the American ap- 
proach to government and international 
affairs has represented in almost quint- 
essential form the modern liberal per- 
spective in politics -animated by 
notions fundamentally different from 
those which undergird Soviet and much 
of non-Western society but confident 
that those liberal notions represent the 
basis for just societies everywhere. The 
belief in the universality of rationalism 
and individualism which characterized 
the 18th century Enlightenment re- 
ceived its best expression in the Ameri- 
can political experiment and its finest 
rhetorical statement in the words of the 
Declaration of Independence: "We hold 
these truths to be self-evident . . .." The 
19th century elaboration of these En- 
lightenment principles in the notions of 
the free flow of peoples, goods, and 
ideas became standards by which we not 
only judged the performance of our 
government but other regimes as well. 

To a substantial degree, however, 
confidence in the liberal notion of 
politics and law has been eroded within 
Western society itself and the applica- 
bility of such notions to much of the 
rest of the world cast in doubt. It is a 
fact, nonetheless, that the malaise con- 
cerning liberal thought affected the rest 
of the Occident earlier and much more 
profoundly than the United States. 
Indeed, a renewed sense of confidence 



was kindled after the Second World 
War, very much under the leadership of 
the United States. It is true that in the 
late 1960's, America began to suffer the 
same crisis of confidence which had 
gripped European society earlier. It is, 
however, the contention of such ob- 
servers as Daniel Moynihan that the 
abandonment of important liberal 
beliefs is not in fact fatalistically re- 
quired by the world situation and that 
such a surrender would be harmful to 
the foundations of the American polity 
itself. If the vision of Wilson can no 
longer be accepted in unqualified 
fashion, neither can it be completely 
jettisoned without damage to the 
American soul and indeed to the quest 
for a legitimate world order. A foreign 
policy whose appeal is primarily to 
realpolitik, power balances, spheres of 
influence, and avoidance of war may in 
this view be not so much irrelevant as 
inadequate. 

Even assuming, however, that Ameri- 
can and Western foreign policy should 
be animated by the very principles of 
their own political founding, it is still a 
matter of debate as to what degree of 
external activism and indeed inter- 
vention this requires. The United States, 
for instance, as many liberal societies, 
has fluctuated in its policies between 
relative noninvolvement in international 
politics, on the one hand, and messianic 
engagement on the other. In the first 
case, one heard the argument that ex- 
ternal political entanglement would 
damage material interests and risk moral 
contamination and that exemplary be- 
havior at home would act as a beacon 
and redeeming model for the rest of the 
world. In the case of more extensive 
external engagement, this was recom- 
mended on the basis of direct threats to 
the core values of American society and 
the necessity of reestablishing an inter- 
national environment in which the 
natural spiritual and material links 
among peoples would no longer be 
subordinated to authoritarian control. 



124 



Indeed, many Enlightenment and 
19th century liberal commentators 
addressed themselves to the question as 
to what conditions, if any, would justify 
not only extensive foreign policy activ- 
ism in general but direct intervention 
within other societies. Archetypical ex- 
amples of the various approaches might 
be found in the writings of Richard 
Cobden, John Stuart Mill, Immanuel 
Kant, and Joseph Mazzini. 

Basically, Cobden stated the most 
uncompromising theory of noninterven- 
tion-one founded on the partiality of 
states in defining universal notions of 
right and on the relative efficiency of 
nonintervention in serving over the long- 
run the material interest of peoples. It 
must be noted that a basic assumption 
undergirding Cobden's view was that, 
transcending interstate relations, there 
is a plethora of relations between 
peoples. Goods, people, and ideas are to 
cross frontiers freely, thus ameliorating 
state conflicts and binding nations to- 
gether: "as little intercourse as possible 
betwixt the governments, as much con- 
nection as possible between the nations 
of the world." Hence, coupled with his 
doctrine of nonintervention was a 
liberal world vision which provided for 
the interpenetration of peoples. 11 Mill, 
Kant, and Mazzini, while accepting 
much of Cobden's vision, provided in 
varying degrees for a policy of state 
intervention. 

Mill enunciated the doctrines of 
limited humanitarian intervention to 
protect lives and property from barba- 
rous acts of violence and to end dead- 
locked civil wars and of counterinter- 
vention to uphold the rule of noninter- 
vention. 1 2 Kant perhaps eroded the 
limitation on intervention even further 
by his notion that stable rules of inter- 
national behavior depend on a radical 
revision of international society into 
republican regimes. Moreover, the 
league of states in Kant's schemes might 
also possess a right of intervention in 
behalf of the republican order. 1 3 



Mazzini completes this evolution by 
arguing that the rule of nonintervention 
had become an instrument of the status 
quo employed by the great powers to 
protect "legitimate" governments while 
restricting transnational liberal ties and 
assistance. 14 In effect, the erosion of 
the Cobdenite principle stemmed from 
the dynamics of anarchical competition 
itself and the conflicting political visions 
of the state actors. 

Although there is little question that 
the counsel of Richard Cobden is most 
appealing to Americans today, it must 
also be noted that the conditions under- 
lying Cobden's advice are missing 
throughout much of the world-the free 
flow of peoples, ideas, and goods. The 
transnational society about which so 
much has been written in recent years is 
not really universal in its scope. Indeed, 
much of Henry Kissinger's diplomacy 
might be construed as an attempt to 
establish various links- economic, tech- 
nical, political, cultural-between the 
West and the East in such a way as to 
bring gradually the states of Eastern 
Europe into a more transnational 
society, in the preservation of which 
they would then have a stake. The fact 
of the matter, however, is that these 
states are still only marginally con- 
nected with that transnational world 
and that much of the character of their 
regimes militates against the same type 
of interlinkages allowed by liberal poli- 
tics. At the same time, the homogeneity 
of political principle and aspiration 
which might allow the acceptance of a 
sphere of influence doctrine and limited 
noninterventionism, does appear still to 
be lacking. Indeed, under such condi- 
tions, Mazzini 's observation that the 
rule of nonintervention may be used to 
protect and legitimize authoritarian con- 
trol is apt and much akin to commen- 
taries on Brezhnev's public espousal of 
nonintervention. 

In effect, to the degree that the 
United States and the West are still 
motivated by classical liberal notions of 



125 



politics, the counsels of John Stuart Mill 
and Immanuel Kant are likely to be 
attractive-that is, the notion of coun- 
terintervention to uphold the principle 
of intervention and the Kantian vision 
of the spread of republicanism as a 
precondition of international stability. 
If in fact Soviet foreign policy is still 
inspired by Leninist political principles 
and the United States is similarly in- 
fluenced by liberal perspectives, then 
any detente must be conceived as 
limited in nature and much more closely 
akin to what the Russians call peaceful 
coexistence. The notion of peaceful 
coexistence does not rule out areas of 
cooperation where material interests 
converge or where the fear of de- 
stabilizing and potentially suicidal war- 
fare becomes dominant. But one must 
be skeptical as to whether anything 
more intimate sustains current Ameri- 
can-Soviet relations. The belief held by 
both sides in varying degree that "what 
is mine is mine and what is yours is 
subject to historical transformation - 
with some fraternal assistance," is likely 
to continue in force. Indeed, the ex- 
amples of Portugal, and especially 
Angola, may very well be cases in point. 
Despite announcements on the un- 
lamented end of the cold war, we are 
probably still living in a revolutionary 
international system. As Henry Kissin- 
ger wrote many years ago: "The charac- 
teristic of a stable order is its spon- 
taneity; the essence of a revolutionary 
situation is its self -consciousness. Princi- 
ples of obligation in a period of legiti- 
macy are taken so much for granted 
that they are never talked about, and 
such periods therefore appear to pos- 
terity as shallow and self-righteous. Prin- 
ciples in a revolutionary situation are so 
central that they are constantly talked 
about." 15 

If the future is to see the continu- 
ance of revolutionary clashes among 
different notions of public order, are we 
then subject to the conclusion which 
Kissinger reached in that same earlier 



study?-"And because in revolutionary 
situations the contending systems are 
less concerned with the adjustment of 
differences than with the subversion of 
loyalties, diplomacy is replaced either 
by war or by an armaments race." 16 
The character of nuclear armaments, the 
desire of the superpowers for a modi- 
cum of stability in their relations, the 
challenge of other international pres- 
sures, and the press of internal demands 
-all these forces may indeed sustain a 
limited detente which impedes war and 
stabilizes arms races. Indeed, it is these 
forces which provide the foundation for 
Kissinger's detente strategy-but it must 
be emphasized that the predominantly 
Hobbesian nature of these inducements 
fails to preclude a rather intense politi- 
cal contest which makes talk of non- 
intervention and even accepted spheres 
of influence premature. 

Henry Kissinger has, in effect, been 
arguing that the involvement of the 
United States in the complications of 
power politics and equilibrium policy is 
permanent and can only be reversed at 
the peril of our national security. 
Should we either withdraw from the 
game of nations with all of its moral 
contradictions or should we act on 
assumptions of natural harmony, univer- 
sal justice, or too blatant a notion of 
American uniqueness, we may 
jeopardize the survival both of our 
political influence and of our national 
values. The reduced margin of our 
power has meant that both a completely 
negative policy of containment toward 
our adversaries or a perception of total 
consensus with our allies will destroy 
our flexibility and endanger our 
national interests. In the past, he has 
argued, 

... we had margin for error 
... we acted as if the world's 
security and economic develop- 
ment could be conclusively in- 
sured by the commitment of 
American resources, know-how, 
and effort. We were encouraged- 



126 



even impelled- to act as we did by 
our unprecedented predominance 
in a world shattered by war and 
the collapse of the great colonial 
empires. At the same time the 
central character of moral values 
in American life always made us 
acutely sensitive to purity of 
means-and when we disposed of 
overwhelming power we had a 
great luxury of choice. Our moral 
certainty made compromise diffi- 
cult; our preponderance often 
made it seem unnecessary. 1 7 
It is the passing of this pre- 
ponderance coupled with the permanent 
necessity to engage in the complex 
maneuvers of diplomatic-strategic rela- 
tions which defines our current prob- 
lems-and which, in Kissinger's view, 
compels not only a modification of 
policy but a transformation of our 
traditional views of world politics. In 
such a world, we would better see 
ourselves in the European tradition of 
equilibrist statesmen who sought not 
only concert with allies but collabora- 
tion with enemies-a world of con- 
trolled conflict and limited cooperation 
rather than a community of justice or a 
world of unambiguous enemies and un- 
shakable friends. In Kissinger's view, 
increasing interdependence, declining 
resources, and the rising demands and, 
in some cases, power potential of the 
"Third World" states make power 
politics and the equilibrist perspective 
more rather than less compelling. 

To an extraordinary degree, Kissin- 
ger's perspective has defined the prob- 
lem not only for the Republican 
Administration but the Democratic 
Party opponents. Although Jimmy 
Carter speaks of a "democratic concert 
of nations" and international human 
rights as a primary focus of American 
policy-themes to which the Adminis- 
tration has responded in this Presi- 
dential election as well as bicentennial 
year-both Carter and Zbigniew Brzezin- 
ski, a Carter foreign policy advisor, have 



appealed to equilibrist notions not dis- 
similar to those of Henry Kissinger. 
However, there still persists a tension 
between Kissinger and his bipartisan 
foreign policy critics which goes beyond 
details of policy. There is what appears 
to be an almost instinctive reaction 
against the implications of Kissinger's 
doctrine for the definition of the nation 
itself. From the beginning of the nation, 
the American polity has been defined 
not only as a nation among nations but 
as a great experiment in government 
with relevance not only to this people 
but to peoples everywhere. Our sense of 
ultimate political harmony arising from 
consent, of the application of rational 
techniques, and of special political 
destiny, are all intimately tied to that 
great revolutionary experiment of 1776 
and its completion in constitution- 
making in 1787. In this view, it is not to 
the European past that we should turn 
but to our own. 

James Madison defined the constitu- 
tion-making task thusly: 

To secure the public good and 
private rights against the danger of 
[a passionate majority] and at the 
same time to preserve the Spirit 
and form of popular government 
is the great object to which our 
inquiries are directed. 
In similar vein, the foreign policy task is 
to reconcile the soul of American 
democracy with the exigences of in- 
volvement in a world which shares few 
of our assumptions. Hostility to Kissin- 
ger may in part stem from a belief that 
he is too little concerned with that 
soul -despite his latter-day sermons on 
American destiny and moral purpose- 
and too willing, in order to meet the 
demands of international politics, to 
adopt alien political models. In fact, 
however, both the claims of American 
democratic-republicanism and the 
exigences of an increasingly insecure 
globe must be met. As we enter the 
third century of our national existence, 
the task we face is no less complex -or 



127 



exhilirating-than the one faced by 
James Madison and his cohorts. 

It is thus probably unrealistic to view 
detente as foreclosing struggles over the 
character of regimes both within and 
without presumed spheres of influence. 
Debate within Western societies would 
be better directed less toward the desira- 
bility of intervention than toward the 
modalities of such involvement. It 
appears inevitable that under current 
conditions this must involve attention 
to tactics of intervention and counter- 
intervention. In a world where transna- 
tional flows are important and growing, 
the Cobdenite eschewal of state inter- 
vention in favor of the interpenetration 
of peoples has much to commend it. 
Where such communication is impeded 
and assistance is rendered to various 
national groups who would further re- 
strict the transnational flow of goods, 
people, and ideas, then the problem for 
Western governments becomes the de- 
velopment of effective instruments to 
influence the domestic evolution of 
various critical countries. In the current 
debate within the United States over 
how to restrict American involvement 
abroad, including the intelligence 
apparatus of the United States, one may 
lose sight of the fact that the United 
States has an interest in developments 
within certain countries, as indeed does 
the Soviet Union. It is a legitimate 
concern that the modalities of American 
influence be compatible with the very 
principles they are intended to uphold. 
Moreover, an American policy too ex- 
clusively dominated by realpolitik may 
have fewer constraints and lead to more 
extensive commitments than one ani- 
mated by attention to the first princi- 
ples of the American regime. On the 
other hand, if such attention is given, 
then one cannot totally ignore the 
warning of Alexander Solzhenitsyn: 
We are also threatened by the 
catastrophe that the physically 
squeezed, constrained world is not 
allowed to become one spiritually; 



molecules of knowledge and com- 
passion are not allowed to move 
across from one half of the world 
to the other. This is a grave 
danger: THE STOPPAGE OF 
INFORMATION between the 
parts of the planet. Contemporary 
science knows that such stoppage 
is the way of entropy, of universal 
destruction. Stoppage of informa- 
tion makes international signa- 
tures and treaties unreal: within 
the zone of STUNNED SILENCE 
any treaty can easily be reinter- 
preted at will or, more simply, 
covered up, as if it had never 
existed (Orwell understood this 
beautifully). Within the zone of 
stunned silence lives-seemingly 
not Earth's inhabitants at all-a 
Martian expeditionary force, 
knowing nothing whatever about 
the rest of the Earth and ready to 
trample it flat in the holy convic- 
tion that they are "liberating" 



it 



1 8 



At the same time, if the character of 
the international system impels concern 
for interventionary policies and their 
prudential and principled limitations, it 
would be a mistake to elevate interven- 
tion itself to a matter of first principle 
and general norm of international con- 
duct. If the international society makes 
it unlikely that Cobden's advice will be 
widely accepted, so one must recognize 
the dangers of too enthusiastically em- 
bracing notions of revolutionary inter- 
vention and counterintervention. Per- 
haps the only position is to maintain 
ambiguity rather than sanction nasty 
conduct or impose impossible rules of 
behavior. In any case, nothing in the 
character of the Soviet and American 
regimes or in the political and economic 
structures of the emerging states indi- 
cates that the requisite stalemates, 
tolerance, or internal stability have been 
achieved so that international regimes of 
nonintervention after the fashion of 
Westphalia may yet be established. Pre- 



128 

mature movement in that direction will vention but will consecrate the victory 
not reaffirm the doctrine of noninter- of one form of intervention. 



NOTES 

1. "Secretary Kissinger's statement on U.S. -Soviet Relations," News Release of the Bureau 
of Public Affairs, Department of State, Office of Media Services, Washington, D.C., Special 
Report, 19 September 1974, No. 6, pp. 3-4. 

2. "Secretary Kissinger at Pacem in Terris," News Release of the Bureau of Public Affairs, 
Department of State, Office of Media Services, Washington, D.C., 10 October 1973, pp. 4-5. 

3. Ibid., at 4. 

4. "Secretary Kissinger's Statement of U.S. -Soviet Relations," op. cit. at footnote 1, p. 3. 

5. For an excellent discussion of the classical arguments for and against intervention, as 
well as historical and contemporary practice, see R.J. Vincent, Nonintervention and International 
Order (Princeton: Princeton University Press, 1974). 

6. The New York Times, August 1, 1975, p. 2:4. 

7. V. Matveyev, Izvestia, 2 December 1975, p. 4. 

8. Daniel P. Moynihan, "Was Woodrow Wilson Right?" Commentary, May 1974, p. 29. 

9. As cited by Archibald MacLeish, The Great American Fourth of July Parade 
(Pittsburgh: University of Pittsburgh Press, 1975), pp. 46-50. 

10. Roy P. Basler, ed., Collected Works of Abraham Lincoln (New Brunswick, N.J.: Rutgers 
University Press, 1953), vol. 4, p. 240. 

11. See The Political Writings of Richard Cobden, ed., F.W. Chesson (London: Cassell, 
1886), esp. his essays on "England, Ireland and America" and "Russia." 

12. See J.S. Mill, "A Few Words on Non-intervention," in Dissertations and Discussions: 
Political, Philosophical, and Historical (London: Longmans, 1875), vol. Ill, pp. 153-178. 

13. See Immanuel Kant, Perpetual Peace (New York: The Bobbs-Merrill, 1957). Also C.J. 
Friedrich, Inevitable Peace (Cambridge, Mass.: Harvard University Press, 1948). 

14. See J. Mazzini, Life and Writings of Joseph Mazzini, 6 vols. (London: Smith & Elder, 
1890), esp. vol. 6, appendix on "Non-intervention." 

15. Henry A. Kissinger, A World Restored (Boston: Houghton Mifflin, nd), p. 3. 

16. Ibid. 

17. "The Future and U.S. Foreign Policy," Secretary Henry A. Kissinger before the Senate 
Foreign Relations Committee on the Bicentennial Hearings on Foreign Policy Choices for the 
70's and 80's, Department of State, Bureau of Public Affairs, Office of Media Services, 
Washington, D.C., 16 March 1976, p. 2. 

18. Alexander Solzhenitsyn, Nobel Lecture (New York: Farrar, Straus & Giroux, 1972), p. 
25. 

*■— 



129 



FORCIBLE SELF-HELP 



UNDER INTERNATIONAL LAW 

Professor Richard B. Lillich 



My job today is to fill you in on 
some of the problems about the use of 
force that are not directly taken up by a 
discussion of the general problem of 
conflict management. As you see from 
the introduction on the lecture, 1 am to 
talk about such things as forcible self- 
help to protect nationals, humanitarian 
intervention, reprisals, retorsion, and 
similar doctrines. As Professor Moore 
undoubtedly pointed out yesterday, the 
general view is that the United Nations 
Charter permits the use of force in two 
areas. One of these is individual or 
collective self-defense, and the second is 
the implementation of a decision by a 
competent international organization. 
Phis generally, of course, would be the 
United Nations, but in some instances it 
might be a regional organization such as 
the Organization of American States. 

Professor Lissitzyn has this to say in 
his book, International Law Today and 
Tomorrow, 'Tl is generally agreed that 
these restrictions apply to all interstate 



uses of force, whether they are called 
war or force short of war.' 1 In other 
words, what I'm talking about today is 
covered in the same way that the actual 
use of warfare would be covered, lie 
goes on to say that "forcible reprisals 
| and presumably other uses of 
self-help | are apparently no longer law- 
ful." This quotation is an indication, of 
course, that we international lawyers 
like to avoid saying yes or no and would 
generally prefer to say maybe. The 
conclusion seems to be that they are no 
longer lawful. Therefore, what 1 want to 
discuss today in rather pinpointed 
fashion are four particular areas: retor- 
sion, reprisal, the use of force to protect 
nationals, and, finally, humanitarian in- 
tervention. Hopefully, we will first de- 
termine what their standing was under 
customary international law, and sec- 
ondly, what impact, if any, the United 
Nations Charter has had upon this. The 
interesting fact is that, despite the lit- 
erature you read on the charter saying 



130 



thai force I6 restricted to the two 

instances that I mentioned before, all of 

these lour doctrines are slill dealt with 
by international law. They are obviously 
concepts that stales deem lo be neces- 
sary; at least they are invoked constant- 
ly in situations that technically, if you 
apply the charter rigidly, would not be 
deemed applicable. 

1 think here we have to realize that 
the U.N. Charter was originally inter- 
preted as a rather absolutist document. 
The idea was that force, and particularly 
aggressive force, was to be eliminated. 
Warfare was lo be eliminated except for 
the two instances that I have pointed 
out. Hut we are gradually beginning lo 
realize that certain other of the sanc- 
tions that were built into the United 
Nations Charter, or were to be imple- 
mented through the United Nations 
Charier, have not actually been imple- 
mented. The charter is not wholly effec- 
tive. Thus, in certain areas we may want 
to consider whether, in effect, some of 
these previous precharler doctrines 
could not be revised. Tor instance, in 
Professor Falk's recent book, Legal 
Order in a Violent World, he is very 
critical of American use of force in any 
of these less-than-warfare situations. But 
even he, in his book and in a recent 
article, has said thai the elimination of 
violence from international life is not an 
absolule value. Nor is it separable from 
other questions at issue in international 
society. He points out that while the 
United Nations Charter does legislate 
against not only the use but also the 
threat of force, it was also designed to 
protect human rights and to establish 
and create a viable world order. Both of 
these are objectives which may require 
the use of coercion in a given instance 
to protect the overall objectives of the 
charter. If this is a valid conclusion and 
if the United Nations itself has not 
implemented all the powers that arc 
found in the charter, then 1 think one 
has to consider whether or not some of 
these traditional doctrines slill have 



validity and, if so, whether we may 
want lo redefine them in certain ways. 

The first of these foundations is 
retorsion. 1 take this doctrine first be- 
cause it is generally listed as number one 
in all the legal literature, probably 
because it can be disposed of most 
rapidly. Ketorsion consists of a legal but 
unfriendly act taken with a retaliatory 
or coercive purpose.* Generally, it does 
not involve the use of force, but it may. 
Now the emphasis here is upon doing 
something unfriendly but legal. What 
would an example of this be? 

Well, suppose, for instance, a country 
tinkers around with its tariff rate to the 
great detriment of- the United States. 
The United Stales may respond by 
adopting a discriminatory tariff rate 
against the other country. We have done 
nothing illegal, we have just responded. 
It is certainly an unfriendly act, but it 
does not involve the use of force. The 
idea is based on the old concept of an 
eye for an eye. We are adopting a 
sanction equal to what was done against 
us in the hope that the first nation will 
relent on a quid pro quo basis. Unfortu- 
nately, it rarely operates that way, but 
this is the theory behind it. 

Another example might be the dis- 
crimination situation. A country refuses 
lo let certain American goods be im- 
ported. The United Slates might re- 
spond by revoking that country's privi- 
lege, previously granted by the United 
Stales, of fishing within the 12-mile 
limit. Once again this is quite permissi- 
ble, even though it may involve the use 
of force if that country then sent fishing 
boats within the particular area. This is 
an example of retorsion which could 
involve the use of force. 

One of the retorsions that is of 
primary concern now— and very topical 
in respect to Peru, Bolivia, Chile, and 
olher countries— is the reduction of 



* Bruce Harlow, "The Use of Force 
. . . Short of War," United Slates Naval Insti- 
tute Proceedings, November I960, p. 89. 



131 



foreign aid or the termination of foreign 
aid. We have a statute called the 
Hickenlooper amendment which re- 
quires the President to cut off foreign 
aid after 6 months if American property 
is taken without payment of adequate 
compensation. This, I would say, is an 
act of retorsion. 

Now I just want to emphasize in 
ending this discussion of retorsion what 
I said before. It involves a legal act, 
something that is quite permissible and 
quite unfriendly, but which is not predi- 
cated upon a prior illegal act by another 
country such as self-defense is. You can 
only respond by self-defense if the other 
party has broken the provisions of the 
United Nations Charter and engaged in 
armed attack or otherwise committed 
aggression. Then it is the prior illegal act 
which makes your conduct legal. But in 
this situation, of course, your conduct is 
legal to start with. Because it is a legal 
act, it is not affected by the charter at 
all, so therefore, what learning we have 
on retorsion from before 1945 can be 
carried over and applied to today as 
well. 

Now reprisals are a different matter. 
This is an area where, with the excep- 
tion of Commander Harlow's piece, 
there has been very little writing recent- 
ly, although I must say there was a very 
useful article published this past sum- 
mer which I will refer to in the course 
of my remarks. Now reprisals constitute 
an action involving the use of force 
against another state which has violated 
international law. The idea of reprisal in 
international law is not to punish the 
first state for the particular illegal act 
but to encourage it to conform to 
international law. 

Here you have a contrast with retor- 
sion, which is a legal act from the 
beginning. Reprisal is only legal in re- 
sponse to a prior illegal act by another 
country. There are also certain limita- 
tions upon reprisal, at least under tradi- 
tional international law. Ill give you 
three of these, birsl of all, as I have said, 



there must be an illegal act by the other 
foreign state. Secondly, the state that is 
going to take the reprisal must request 
from the initial wrongdoing state some 
kind of reparation— give them an oppor- 
tunity, in effect, to make right their 
international wrong. And then, thirdly, 
and this limitation is something that 
runs through the entire question of 
self-help and, indeed, of self-defense, 
the measures that must be adopted in 
carrying out a reprisal must be propor- 
tionate to the original provocation. In 
other words, if some infiltrator comes 
over your border and shoots one of 
your sentries, you cannot A-bomb the 
capital of the other country. 

Classical examples of reprisals, most 
of which were in the area of naval 
warfare, would involve an embargo of 
the ships of an offending state, seizure 
of ships on the high seas, and pacific 
blockade. More recently it has been 
suggested that the right of reprisal could 
be invoked, and indeed to some extent 
it was invoked, in the original response 
in the Gulf of Tonkin in 1964 when 
there was an airstrike at the oil installa- 
tions immediately after the alleged 
attack on the American ship. 

Also, during last winter, just before 
th release of the Pueblo crew, it was 
suggested that seizure of a North 
Korean fishing boat that had been built 
in Europe and which was being towed 
across the Atlantic could have been 
utilized as a form of reprisal. The 
efficacy of that is something 1 will leave 
to your speculation. In any event, it is a 
live doctrine and, as 1 am sure you are 
aware, it is one that the Israelis rely 
upon almost every day. I have not had 
the opportunity to see today's New 
York Times, but there was another 
"retaliatory raid" announced in yester- 
day ''sNew York Times. 

This brings us to the question of 
what is the impact of the United Na- 
tions Charter upon this doctrine of 
reprisal? Article 2(4) of the charier, as 
Professor Moore told you, prohibits the 



132 



threat or ihc use of force. The question 
is, does this really mean thai a state, 
even a state that is trying to follow the 
dictates of the United Nations Charier, 
must n't rain from any use of force 
whatsoever when another state is violat- 
ing the provisions of the charter and 
when the United Nations either cannot 
act or refuses to act in a given situation? 
1 must say that the general view which is 
advanced by such people as Brownlie in 
his book on this subject, by Commander 
Harlow, by Professor Lissitzyn, and 
most others is that the charter prohibits 
all reprisals involving use of force. Pro- 
fessor Brierly in his book The Law of 
Nations says, 

today it is beyond argument that 
armed reprisals . . . would be a 
flagrant violation of international 
law. Equally, it is also clear that 
Article 2 does not preclude a state 
from taking unilaterally economic 
or other reprisals not involving the 
use of armed force in retaliation 
for a breach of international law 
by another state. 

There is a lot of support for this, not 
only among the textwriters, but also in 
the United Nations itself. In 1964 the 
Security Council censured Great Britain 
for carrying out a reprisal against 
Yemen. This was allegedly in retaliation 
for the Yemini support of guerrillas in 
Aden. You recall that the British wen' 
having great difficulty in that former 
colony at the time. This resolution 
passed the United Nations Security 
Council, nine votes to none, with two 
abstentions, and it "condemns reprisals 
as incompatible with the purposes and 
principles of the United Nations." This 
is a pretty general statement. It is not 
only condemning a specific action, as 
the United Nations has done in many 
instances with respect to Israeli retalia- 
tory actions, but it is saying that repri- 
sals themselves are incompatible with 
the purposes and principles of the 



United Nations Charter. Many scholars 
like Professor Falk go even beyond that. 
They conclude that the charter pro- 
hibits all forms of forcible self-help 
other than the exercise of self-defense 
within article 51 of the charter. 

This raises some questions about 
which we may want to speculate. I am 
not sure it points to many answers, but 
at least you can see the problem. Today, 
most retaliatory claims are made by 
Israel, but they are made by other states 
as well. Should we condemn a country 
like Israel merely by applying the con- 
ventional wisdom that reprisals have 
been outlawed by the United Nations 
Charter and, therefore, are no good— 
that Israel is engaging in acts that would 
have constituted reprisals and is there- 
fore violating international law? What 
alternatives are available to Israel? I 
think it is proper to assume an unwill- 
ingness on the part of at least certain 
Arab governments to negotiate. Negotia- 
tions under the United Nations Charter 
in this situation, as you know, are 
required by article 33. Cannot it be 
read, cannot it be interpreted, that what 
Israel is doing is, as I suggested before, 
obviously taking actions that she thinks 
she has to take for her national security 
but also, in a broader sense, highlighting 
a defect in the operations of the United 
Nations or perhaps in the machinery ol 
the United Nations? In other words, in a 
broader context, cannot it be argued 
that Israel is making, really, a plea for 
the cooperative type of law enforce- 
ment that the charter originally 
envisaged? 

Professor Falk wrote his article to 
which I referred in the American 
Journal of International Law last July. 
It is an analysis of the Beirut raid and its 
relation to the international law of 
retaliation. You recall that this occurred 
a little over a year ago. An El Al plane 
had been shot up in Greece, and as 
retaliation, Israeli commandos in heli- 
copters landed at the Beirut airport and 
destroyed all the Arab planes that were 



133 



there. Unfortunately, two-thirds of 
those planes were not owned hy anyone 
in Arah countries— they were owned hy 
American businessmen. The Israelis thus 
destroyed about some $33 million 
worth of properly, most of which was 
subsequently compensated for by 
Lloyds of London. In any event, Pro- 
fessor Falk goes through a very detailed 
and, I think, quite correct analysis, but 
he comes out saying that the raid seems 
illegal, which is in contrast to his view 
that all kinds of forcible self-help are 
impermissible. One would expect him to 
say that it definitely was illegal. He goes 
on to express his dissatisfaction with 
this conclusion in this very interesting 
paragraph. "It seems clear that on the 
doctrinal level Israel is not entitled to 
exercise a right of reprisal in modern 
international law. Such clarity," he goes 
on to say, "however, serves mainly to 
discredit doctrinal approaches to legal 
analysis." And not only in international 
law, I might point out, but in other 
areas of law as well. You just cannot 
read the text isolated from the complex- 
ities of certain situations. He goes on to 
say, "International society is not suf- 
ficiently organized to eliminate forcible 
self-help in either its sanctioning or its 
deterrent role. Therefore each reprisal 
claim needs to be appraised by reference 
to these two roles, namely sanctioning 
and deterrence." At the end of the 
article is listed a variety of criteria, and 
he then says that even if these criteria 
were being applied and even if there was 
a right of reprisal in international law 
which earlier he suggests there is not, 
Israel would not have met the test 
because its response was not propor- 
tional to the original wrong and because 
there was no evidence that these people 
who originally did the wrong to Israel 
came from Lebanon. They may have 
come from some other Arab country. 
Hut the whole question is left open, I 
think, at the end of the article, and the 
best I can do is to leave the question 
open today. I stated the arguments on 



both sides; I have indicated that there 
has been a valid erosion away from the 
original interpretation of the charter 
that says reprisals are entirely out; and I 
think perhaps we international lawyers 
and Government officials are rethinking 
the entire problem. There is a need, 
perhaps, for some kind of reinstitution 
of reprisal— if not in the most classical 
sense, then in a more limited sense— as 
some kind of sanctioning instrument 
under international law. 

Now, in the last third of my time, Id 
like to take up the other two topics, 
which are interwoven. These are inter- 
vention to protect nationals and inter- 
vention on humanitarian grounds. These 
have been very topical things in recent 
years, as you will see, and they are going 
to continue to be so. Now, insofar as 
protection of nationals is concerned, 
you recall that in today's reading there 
is a mention of certain Navy Regula- 
tions. I am writing a Naval War College 
International Law "Blue Hook' 1 — one of 
the delightful obligations of the chair- 
holder. 1 am writing it on this topic, and 
when I started to write on this topic, 
about three and a half years ago, there 
was almost no writing on it at all. If you 
want to refer to the original interpreta- 
tion of the United Nations Charter or to 
some of the original books, indicating 
what customary law said, you could 
refer back to Westlake or Lawrence or 
early Oppenheim, but there is very 
little information on what the situation 
is today. Your present Navy Regulations 
I was able to trace in Washington back 
to 1893. They are almost in haec verba 
now with what they were in 1893. Since 
then we have had the Hague Conven- 
tions, the League of Nations, the 
Kellogg-Briand Pact, and the United 
Nations Charter. I gently suggested that 
it might be a good idea to reassess these 
sections of the Navy Regulations to see 
whether they were in conformity with 
international law, and I was assured that 
we always had an on-going reassessment 
of these regulations. In any event, they 



134 



hear up fairly well, because lliey wore 
obviously drafted l>v excellent lawyers 
who put enough ambiguities into them 
so thai one could construe them in a 
variety of ways without doing too much 
injustice to their original. 

It you go hack to the first instances 
in which the United States sought to 
protect nationals by the use of contin- 
gents ashore, you will find about 188 
cases in which these forces allegedly 
protected the lives and the property of 
American citizens, mostly in Latin 
America but in the East and the Near 
East as well. It was deemed to be 
permissible under international law, 
there was nothing wrong with this as 
states could legally use forces to protect 
the lives and property of their citizens 
abroad. It was forcible self-help, but it 
was a permissible sanction to protect 
the human rights of your citizens, in- 
cluding their property rights. There was 
no doubt that it was not deemed to be 
intervention under customary interna- 
tional law. Even those people who said 
it was intervention would then go on to 
say it was permissible intervention be- 
cause it was for a permissible purpose. 

Now the other concept, humani- 
tarian intervention, is slightly different. 
Humanitarian intervention allows a stale 
or a group of stales lo intervene in a 
country to prolect not only its own 
nationals, but also to protect nationals 
of either third stales or nationals of the 
country in which the intervention is 
made. Eor instance, the phrase was 
always stated that if the treatment of a 
state to its nationals shocks the con- 
science of mankind, as did the treat- 
ment of the Jews in Russia and various 
Christians in Turkey during the last 
century, then generally the great powers 
would mount some kind of expedition 
that would intervene and attempt to 
bring an end to what they deemed to be 
a shocking violation of human rights. 
Now note that here there is not a 
connection based upon nationality. 
There is a connection here based upon 



the need to protect individuals under a 
certain international law standard. So 
the doctrine of humanitarian interven- 
tion goes beyond the protection of 
nationals and actually protects not only 
foreigners without a country, but also 
the citizens of the country itself. 

This is a difference not really in kind, 
but a difference in approach. Generally, 
humanitarian intervention was exercised 
by a group of states and not a single 
state as was generally the case in the 
protection of nationals. Humanitarian 
intervention was justified on the ground 
that allhough it obviously was an inter- 
ference with the sovereignty of the 
invaded state, it was a permissible one. 
Sovereignty was not absolute, and when 
a state did reach this threshold of 
shocking the conscience of mankind, 
intervention was legal. 

Now, what is the impact of the 
United Nations Charter on these two 
doctrines? If one takes a look at the 
discussions of the charier immediately 
after its adoption in 1945, for instance 
in Judge Jessups excellent book, one 
sees quite clearly that the charier sup- 
planted these individual measures— 
protection of nationals and humani- 
tarian intervention which had been ap- 
proved by customary international law. 
In oilier words, I hey were no longer 
pernussible. And almost all of the 
writers concur in this. Some say its very 
doubtful whether it still exists. Hrierly, 
for instance, very delicately says that il 
is a delicate question. The Thomases, 
who did an excellent study in the 
Dominican Republic crisis, cannot effec- 
tively come to grips with the issue, but 
they indicate that probably only non- 
forcible measures, in other words, not 
actual force, could be used in the 
situation lo prolect human rights ol 
cither nationals or in a humanitarian 
context. 

I do think here you have to reassess 
the interpretation of the charter based 
on the experience of the last 25 years. 
You need not rely exclusively upon the 



135 



charter. Jessup in his book adds a very 
interesting caveat which, I think, has 
heen overlooked by many people. In it 
he affirmed that these traditional doc- 
trines have heen replaced by the charter, 
hut he went on to say that if the 
Security Council, witli its Military Staff 
Committee, was unable to act with the 
requisite speed to preserve life, then 
forcible self-help might be allowed. 
And, of course, it is not a question of 
their acting fast enough; they do not 
have any contingents, they are not 
established, and they are unlikely lo act 
at all. It is not a question of rapidity of 
the action; it is a question of getting 
some action initially. 

It would be quite all right to forbid 
forcible self-help under the charter 
under the assumption, such as Jessup 
was making, that the United Nations or 
a regional organization such as the OAS 
or the Organization of African Unity 
had either established collective ma- 
chinery to handle these situations or 
could act quickly on an ad hoc basis. As 
a matter of fact, we know that they 
have not. Let me give you two ex- 
amples. 

The first is the Congo in 1964. In the 
Con^o situation there were several thou- 
sand foreigners and Congolese captured 
by the Cizenga government. It was, of 
course, the rebel faction that really was 
not a government in the legal sense, but 
it did occupy a portion of the country 
and was in rebellion against the central 
authority. These people were kept as 
hostages. There was no doubt that this 
constituted a violation not only of the 
United Nations Charter, but also of the 
Geneva Conventions. No one really took 
issue with that at all. Hut the United 
Nations got bogged down in debate 
upon it. They finally decided to let the 
Organization of African Unity attempt 
to do something; they tried and were 
very, very unsuccessful. Why should 
Gizenga, on his last legs, give up these 
hostages? He made the maximum propa- 
ganda use of them. There were 



broadcasts indicating I hey would skin 
these people alive and do all kinds of 
other horrendous things unless peace 
was made on his terms. These propa- 
ganda statements were not exaggerated, 
for it was discovered later when the 
United Nations did go into Stanleyville 
that orders had been issued and wen; 
outstanding lo shoot the hostages if 
there was any bombing in the area. This 
is a violation of international law, to say 
the least. As a result of this, the United 
States, cooperating with Belgium and 
Britain, mounted an airdrop which, as 
you know, landed at Stanleyville and 
rescued these people. There was a tre- 
mendous sparing of life, and I think it is 
reasonable to assume and reasonable to 
conclude that this was a valid exercise, 
at least in the classical sense, of humani- 
tarian intervention. 

As Professor Falk points out, this 
really brought down the fury of the 
radical African governments upon the 
United States in the United Nations. In 
fact, as a result, the United States took 
a horrible propaganda beating. Professor 
Sehwebel, who was here last year, was 
at the United Nations for the United 
Stales at that time, and he said that the 
United Stales, and Ambassador 
Stevenson in particular, was amazed at 
this fact. It was not couched in terms 
that this was a violation of article 2(4), 
it was strictly on political lines, without 
using legal argument except to the 
extent that the argument was made in 
very general terms that the charter 
forbids this type of humanitarian inter- 
vention at all. 

Let me give you another example. 
This was the Dominican Republic in 
1965. This is a lot more controversial, as 
1 am sure many of you realize, for a 
variety of reasons. Hut at least initially, 
in the perception of the U.S. Govern- 
ment and, I think, even the strongest 
critics of the American action, like 
Professor Falk or Professor Friedmann 
of Columbia, the introduction of 400 or 
500 marines into a crisis situation to 



136 



gather, protect, ami withdraw American 
nationals, and also the nationals of 
other countries that wanted to he, taken 
out of the Dominican Republic, was 
allegedly a valid act of protection of 
nationals by the use of force overseas. 
Certainly this was true under customary 
international law. Whether it was true, 
of course, under the United Nations 
Charier and whether humanitarian inter- 
vention is valid under the charter gets us 
into an entirely different game. 

As in the case of reprisals, certain 
things that were supposed to he set up 
have not become effective, therelorc we 
find it necessary not to reinterpret 
arbitrarily the provisions of the charter 
but to read experience into it. I sup- 
pose, to some extent, it is like the 
Supreme Court, which some people feel 
is the Constitution by its interpretation. 
It is perfectly permissible to amend the 
charter by interpreting it differently, 
depending upon the expectations of the 
parties and the practice over the years. 
The argument has been made that there 
is no violation of the charter under 
artiele 2(4) or in its humanitarian or 
protection of nationals provisions be- 
cause what is forbidden is the use or 
threat of force that would impair the 
territorial integrity or political indepen- 
dence of a stale. Now in both the Congo 
and the Dominican Republic there was 
certainly nothing that impaired the ter- 
ritorial integrity of the states involved. 
The political independence of the stale 
was not directly affected in the Congo, 
and, although the United States went on 
to introduce additional troops, it was an 
entirely different situation when we 
kept staying in the Dominican Republic 
under OAS authorization. At least ini- 
tially, we were not attempting in any 
way to interfere with the political in- 
dependence of the state. In fact, we 
were trying to find some stale with 
which we could deal. You could also 
read this against the broader interpreta- 
tion. It is not necessary lo take a narrow 
reading of article 2(4). You can say that 



this interpretation is consistent with the 
general principles of the charter. I 
would say that the two big things in the 
charter are the prevention of aggressive 
war and the protection of human rights. 
And, certainly, if a construction of one 
section of the charter, namely article 
2(4), will further human rights, it is a 
proper construction. When I started out 
doing this research, no one supported 
this view. Since then I have found that 
Professors Reisman and McDougal of 
Yale now take this view. A thesis was 
written by, surprisingly enough, a 
Nepalese graduate law student in 
Canada last year who look this position, 
and I think even Professor Falk and 
some of the other critics of American 
interventionary actions are taking it as 
well. Now, if you can make a valid case 
for the right of forcible self-help in 
these two instances— the protection of 
nationals and humanitarian 
intervention— then I think it becomes an 
obligation on the part of international 
lawyers and the military. Let me say 
that this is not something that is entire- 
ly abstract because, as I'm sure some of 
you are aware, there will soon be 
exactly the same situation in Haiti that 
occurred in the Dominican Republic, 
and the United States will suffer once 
again an adverse political reaction if we 
lake interventionary action. There may 
even be what you refer to as an Op- 
Order outstanding on this right now. 
Nobody will tell me. In any event, this 
type of thing will occur in the future, so 
we are not dealing only with the theo- 
retical. 

There are various criteria for such 
interventions proposed by a Professor 
Nanda in an article which he wrote 
several years ago on the Dominican 
Republic. For instance, he says you 
must have a specific limited purpose 
such as rescue. You cannot intervene 
because they are Communists or you 
think ihey are Communists or you do 
not like them or you want lo protect 
your foreign investment. If possible, 



137 



you should have an invitation by a 
recognized government. If you have an 
invitation, of course, it is not even a 
question of intervention. Thirdly, he 
refers to the limited duration of the 
mission. You cannot intervene as we did 
in Haiti in 1914 and stay 20 years— at 
least not on the rationale of protection 
of nationals. You also have to use a 
limited amount of coercion. You don't 
bring tanks into Santo Domingo if small 
arms will do the job. And fifth, you 
have to have no other recourse; it Itas to 
be in extremis, and this, of course, is 
pointed out quite correctly by your 
Navy Regulations. 

I have also attempted to set some 
standards in my article and another 
piece that also was published this past 
summer. Of the criteria that I have 
stressed, one or two of them are varia- 
tions on Professor Nandas, but in addi- 
tion to that, I have considered such 
things as the immediacy of the violation 
of human rights. Is a massacre really 
imminent, or are rumors the only source 
of information? Lor instance, the Slate 
Department said in 1965 that there was 
blood flowing in the streets of Santo 
Domingo. This was an accurate state- 
ment but in the general context in 
which it was issued you were left with 
the impression that there were rivers of 
blood: statements were made about 
heads being cut off and put on pikes. 
There was a lot of informal retaliation 
among the people in the Dominican 
Republic, which was revealed by the 
Inter-American Commission on Human 
Rights in its investigations after 1965. 1 
think, however, there is a question in 
this instance about the immediacy of 
the violation of human rights. I think 
your Navy Regulations indicate that it 
has to be a very immediate and very 
severe human rights violation to permit 
this type of intervention. 

I also think that it certainly helps if 
you have an invitation either from the 
recognized government or at least from 
some authority that appears to have a 



reasonable basis for miking the request. 
Once again, the intcrvenor must limit 
the coercive measures involved and must 
also be relatively disinterested. Someone 
in the Harvard Law Review suggested 
that any state that has an interest in the 
outcome should not be able to inter- 
vene. Well, if you intervene to protect 
your nationals, how can you intervene 
without an interest? In fact, some of the 
leading advocates of the human rights 
aspects have suggested that it is most 
difficult to get people to express con- 
cern, particularly concern expressed in 
action, because of human rights 
deprivations in other countries, like the 
situation in Biafra and the situation 
several years ago in Indonesia. People 
are only concerned, unfortunately, 
when they have some interest in it 
themselves, and the interest, of course, 
is generally based upon their own 
nationals. 

I think, in conclusion, that we can 
see that the Congo airdrop was a classic 
occasion of humanitarian intervention, 
and the Dominican Republic, at least 
initially, was a classic case of forcible 
self-help. 1 think an argument ("an be 
made for the permissibility of both 
these types of actions under the United 
Nations Charter. I think, in general, you 
will find that as time passes, more and 
more people will take a stand against an 
absolute prohibition of the use of force 
in international law in the situations 
that I've been discussing today. 

Vd like to close by recalling a lecture 
given here 2 years ago by Professor 
McDougal in which lie, in effect, admit- 
ted that he had reconsidered some of his 
earlier views. In particular, he said, 
I am ashamed to confess that at 
one time I lent my support to the 
suggestion that article 2(4) and 
the related articles did preclude 
the use of self-help less than self- 
defense. On reflection, I think 
that this was a very grave mistake, 
that article 2(4) and article 51 
must be interpreted differently. 



138 

He goes on and lists his reasons, coming 
to tin' conclusion that in the absence of 
collective machinery lo protect people 
against attack and deprivation, in other 
words in the absence of machinery as 
noted by Judge Jessup many years ago, 
the principle ot major purposes requires 
an interpretation which would honor 
sell-help against a prior unlawfulness. 

The subsequent conduct of the par- 
ties to the U.N. Charter certainly con- 
firms this. Many states of the world 
have used force in situations short of 
the requirements of self-defense to pro- 
tect their national interests. That in- 
cludes the United States, Great Britain, 
Israel, and also many other countries. 1 
will just end with a conclusion: a 



prohibition of violence is not an abso- 
lute virtue, for we may well want to use 
violence with respect to Rhodesia, or we 
may want to use violence with respect 
to other areas of Southern Africa. As I 
say, it is not an absolute virtue; it has to 
be weighed against other values as well. 
And this leads me to a statement by 
Secretary of State Dulles that he made 
about 12 years ago. I disagreed with 
him on many things, but I do agree 
with him on this statement. He said, 
"Peace is a coin which has two sides; 
one is the avoidance of the use of 
force, and the other is the creation of 
conditions of justice. In the long run, 
you cannot expect one without the 
other." 



t 






139 



FORCIBLE SELF-HELP 



EN INTERNATIONAL LAW 



James J. McHugh 



INTRODUCTION 

The Problem of Force in Interna- 
tional Relations. The proper use of 
force has historically been a preeminent 
concern of mankind. In the domestic 
environment the progress of centuries 
has evidenced the development of a 
highly structured order for the appropri- 
ate application of this means of coer- 
cion. Societies, bound together by com- 
mon heritage and a community of 
interest, have, under the central au- 
thority of the state, developed regula- 
tions for the use of force covering a 
broad spectrum of situational hypothe- 
ses. 

But even in domestic society, signifi- 
cant debate has arisen as to the proper 
application of force. Thus, in the cur- 



rent milieu in the United States, we 
have witnessed discussions on the 
morality of capital punishment and the 
legitimacy of measures of private coer- 
cion such as sit-ins and mass demonstra- 
tions. 

If domestic societies can still debate 
the appropriate application of force 
internally, how much more difficult is 
the solution of problems surrounding 
the use of force in the international 
community. With a multiplicity of 
sovereign nation-states prosecuting their 
separate national interests and with no 
central authority to manage the expres- 
sion of these frequently competing in- 
terests, it is perhaps a testament to the 
basic rationality of the human species 
that man has not long since destroyed 
himself. 



140 



And yet he has not. Through centu- 
ries of cataclysm and accommodation, 
states have managed, although some- 
times just barely, to preserve at least a 
semblance of order, even in circum- 
stances of great disorder, by developing 
minimum standards for the proper ap- 
plication of force. 1 This essentially neu- 
tral energy has been all-pervasive in 
international relations and very fre- 
quently misused, but concern for its 
utilization has always been present, and 
it is this concern which prevails as a 
bulwark against the challenge of chaos. 

The Current Conundrum. The ex- 
perience of the last 50 years has greatly 
heightened the preoccupation of nations 
with the application of force. World 
Wars I and II have seemingly convinced 
men and nations that at least the uni- 
lateral use of armed force by states 
should be foresworn; that its application 
should be surrendered to a central 
authority whose dispassion and objec- 
tivity, hopefully, could be counted on 
to at once reduce the chances that force 
would be resorted to and carefully 
circumscribe the mode of its application 
when required. 

At both Versailles and San Francisco, 
men of goodwill attempted to create 
such an authority: in the latter case 
with an even greater sense of urgency 
than in the former. By 1945 the nations 
of the world had witnessed the horror of 
two World Wars and the advent of 
atomic power, and they were fully 
convinced that the control of force had 
become a sine qua non for the con- 
tinued existence of mankind. 

Viewed from the perspective of 
1972, however, it can be stated that in 
large measure the United Nations has 
failed to minimize the use of armed 
force. It is true that in the past 27 years 
there has been no worldwide conflag- 
ration; but there have been many lesser 
but very bloody conflicts and, by and 
large, only the residual horror remaining 
from 1945 and the universal fear of an 



apocalypse of thermonuclear power 
have kept leashed the dogs of world 
war. 

The reasons for the failure of the 
United Nations to control the use of 
force are to be found both in the 
environment of its birth and the charac- 
ter of its principal legislative instrument. 
The U.N. was created during a period of 
temporary consensus as a reflection of 
the chaotic upheaval of World War II. 
As a result there was enacted in its 
charter a body of aspirational interna- 
tional law which depended for its effec- 
tiveness on the continued consensus of 
the Great Powers of the world. The 
United Nations had en esse arrogated to 
itself the competence to use armed 
force to redress wrongs; but when the 
Great Power consensus evaporated, this 
competence became a nullity. 2 

This is the conundrum that has 
plagued the nations of the world ever 
since: the riddle of an organization with 
authority and no power; the paradox 
of a world where states have rights but 
have ostensibly foresworn their reme- 
dies to an institution that, by and large, 
can insure no redress for wrongs; the 
need to honor an instrument which has 
become, for many states, the supreme 
law of the land while at the same time 
recognizing that full honor and com- 
plete compliance with the spirit and 
even the letter of that instrument are 
beyond the capability of sovereign 
states with conflicting and often selfish 
national interests. 

State Response. Construing their ac- 
tions most charitably, it can be stated 
that in the face of this dilemma the 
several states of the United Nations have 
done the best they could to strike an 
accommodation between the mandates 
of the charter and the requirements of 
their own national interests. By and 
large, they have adhered to the principle 
that armed force can no longer be 
justified simply as an instrument of 
national policy and that armed aggres- 



141 



sion, whatever its precise meaning, 3 is a 
criminal act. However, states have con- 
tinued, in practice, to resort to the use 
of armed force. They have employed 
traditional measures of forcible self-help 
short of war and have attempted to 
justify this action on the basis of the 
charter, and too often this has become 
purely a game of semantics. 

Such a modus operandi would not 
necessarily bode ill for the creation of a 
body of regulations for the realistic 
management of international force. It 
could even be envisaged as a develop- 
ment somewhat parallel to that experi- 
enced in the United States and Great 
Britain where common law evolved both 
under and together with constitutional 
instruments. However, with no central 
authority for enforcement and no com- 
pulsory jurisdiction to achieve objective 
interpretation, a distinct pattern of 
developing legitimate/illegitimate state 
practice is difficult to discern. If a body 
of international law on forcible self-help 
is emerging under the charter, it is more 
a random happenstance than a con- 
sidered development by dispassionate 
and objective judicial ratiocination. 

Result of State Response. The state 
response of employing measures of 
forcible self-help and then attempting to 
rationalize them under the charter has 
led to considerable confusion. Tortuous 
legal reasoning has been applied to 
justify actions clearly beyond the pale 
of the charter. 5 Inconsistent Security 
Council reaction has elaborated the con- 
fusion, 6 and finally, the dearth of judi- 
cial pronouncements has compounded 
matters even further by precluding any 
real development of authoritative prece- 
dent. 7 

As a consequence, frustration and 
cynicism have grown apace. Both de- 
cisionmakers and scholars have fre- 
quently fallen victim to one or the other 
of these twin devils. It has been con- 
tended that the use of force is an area 
beyond the competence of international 



law, that in the absence of a true 
international consensus the control of 
force must remain in a legal no man's 
land. 8 It has even been advanced that 
the function of international law in the 
control of force is simply to provide the 
best possible justification for political 
acts and in no way is it relevant as a 
consideration in the development of 
policy. 9 

Along with these counsels of despair, 
however, there is in evidence a growing 
realism concerning the appropriate func- 
tion of the law in the application of 
force by states under the charter: a 
realism which neither admits of irrele- 
vancy nor pretends to omnipotence but 
rather seeks the middle ground between 
"the Charybdis of subservience to state 
ambitions and the Scylla of excessive 
pretensions of restraint." 1 

This school of realism views the 
world as seeking at least a minimum 
public order and conservation of human 
values and perceives the function of the 
law as a process of decisionmaking to 
the achievement of this end. * l Rigid 
concepts of legality and illegality in the 
application of force, particularly in the 
absence of compulsory jurisdiction, are 
viewed as distinctly unhelpful. Rather, 
empirical norms are sought which will 
provide at least a modest body of 
consensual regulation, and as the habit 
of consensus grows, so will the law. It is 
contended that state conduct should be 
justified or condemned on the basis of 
its rationality and restraint under all the 
circumstances, rather than on the basis 
of how said conduct comports with an 
arbitrary standard of legality which does 
not possess consensual content. 

The net result of this approach does 
not afford the law as exalted a position 
in the order of international hierarchy 
as some might desire, but its proponents 
would contend that vis-a-vis the use of 
force, international society is primitive 
at best, and if the law is to thrive in 
such an environment it must not aspire 
to more than it can achieve. 1 2 



142 



Purpose of This Essay. With this 
concept in mind, the present essay will 
consider that mode of force to which 
states have frequently resorted since 
1945, i.e., forcible self-help, and at- 
tempt to elucidate some practical cri- 
teria which decisionmakers might apply 
in a situational context to determine 
whether a proposed use of force is 
legitimate. To do this it will be helpful 
to first examine the customary law of 
forcible self-help as it existed prior to 
the U.N. Charter. Next, the proscrip- 
tions and prescriptions of the charter 
will be considered and, subsequently, 
state practice under the charter, Se- 
curity Council actions in response to the 
use of force, such judicial decisions as 
exist, and authoritative commentary in 
the area. 

Hopefully, from this analysis it will 
be possible to indicate certain state 
conduct which is clearly legitimate and 
other activity which is equally clearly 
subject to condemnation. Between these 
poles there will obviously be a broad 
gray area, but it is in this area that 
certain inchoate normative conduct may 
be discernible which can provide a 
suggested pattern for decisionmaking 
with a high order of probability that the 
use of force in a given instance can be 
legitimated. 

It should be noted that the emphasis 
throughout is on measures of forcible 
self-help, forcible in the sense that 
armed force is applied or threatened. 
The numerous other means of coercion 
utilized in international relations, while 
of considerable significance in interna- 
tional law, must of necessity be rele- 
gated to a position of incidental refer- 
ence in the current undertaking. 

Whether the effort to enunciate prac- 
tical guidelines will be successful re- 
mains to be seen, but it is considered a 
most necessary endeavor. There has 
been much too much of the frustration 
and cynicism referred to above. Deci- 
sionmakers have, with considerable jus- 
tification, frequently thrown up their 



hands after attempts to assay what 
guidance the law offers in this area and 
have fallen back on post-factum ra- 
tionalization. And yet even this cynical 
approach is a response to an intuitive 
appreciation that the awesome power 
which force can exhibit demands great 
circumspection in its application. For as 
Richard Falk has eloquently noted: 
"Among the most profound quests of a 
moral man is knowledge about the 
proper use of force in human relations, 
for force entails a wide range of claims 
over life and death. As such it expresses 
the limiting condition of mortality." 13 

THE CUSTOMARY INTERNATIONAL 
LAW OF FORCIBLE SELF-HELP 

The General Nature of Forcible Self- 
Help. Forcible self-help as a means of 
coercion short of war is an ancient and 
obvious principle to which societal com- 
munities have had frequent recourse in 
the conduct of international relations. 
As long ago as 431 B.C. a treaty 
between the Mediterranean city-states 
of Oeantheia and Chalaeum attempted 
to regulate resort to this mode of 
conduct. 14 

Self-help is, of course, the creature of 
a decentralized society, be it national or 
international. In the course of history, 
resort to self-help has waxed and waned 
in relationship to the degree to which 
society was integrated or diffused. Thus 
the establishment of the Roman Empire 
seems to have eliminated practices of 
self-help in the territory under Roman 
rule; again after the dissolution of the 
Holy Roman Empire and the diminu- 
tion of the power of the Pope self-help 
flourished. 15 In more recent times, the 
full flowering of the nation-state system 
with its accent on sovereign indepen- 
dence created a condition in interna- 
tional relations in which measures of 
self-help were vital to the protection of 
state interests. 

Across this historical spectrum, while 
the legitimacy of self-help was clearly 



143 



recognized so were its inherent dangers, 
and, accordingly, attempts to regulate 
the means and methods of self-help have 
been as consistently in evidence as the 
instances of a recourse to the device. 16 
Out of this effort has developed a body 
of international law which, with varying 
degrees of success, has categorized and 
defined legitimate measures of forcible 
self-help and prescribed rules for their 
utilization. Under the classical system of 
international law, these measures could 
be divided into three main legal cate- 
gories: (a) self-defense, (b) reprisals, and 
(c) intervention. 1 7 

Self-Defcnsc. A state's right of self- 
defense was considered paramount 
under customary international law. And 
yet a precise definition of this right is 
difficult to\ discover. In the 19th cen- 
tury, statesmen and writers frequently 
equated the right with a "right" of 
self-preservation. 18 Yet it has been 
noted that such a definition is so exten- 
sive as to destroy the imperative charac- 
ter of any system of law by making all 
obligation to obey the law conditional. 
It has been suggested that rather than 
equating self-defense with self-preserva- 
tion, it should be recognized that self- 
preservation for both states and individ- 
uals is an instinct rather than a legal 
right. While in a given situation the 
instinct might prevail over a legal duty 
not to do violence to others, a society 
espousing any kind of order ought not 
to admit that it is lawful for it to do 
so. 

The foregoing suggests that, in cus- 
tomary law, self-defense became recog- 
nized as a more limited right than that 
enunciated in the 19th century. This 
view is generally borne out by the 
practice of states. At least after 1920 
legitimate self-defense typically appears 
in the context of the threat or use of 
force. It was considered as a reaction to 
imminent or actual violence rather than 
as justified by any violation of the legal 
rights of a state or of its subjects. 2 ° 



Probably the best statement of the 
conditions for the exercise of self- 
defense in customary international law 
is the definition formulated even earlier 
by Secretary of State Daniel Webster in 
the Caroline incident. 2 2 

In 1837 during an insurrection in 
Canada, the steamer Caroline was being 
used to transport to Canada men and 
materials for the rebels from American 
territory across the Niagara River. The 
Government of the United States was 
not preventing this activity, and, accord- 
ingly, a body of Canadian militia 
crossed the Niagara into U.S. territory 
and after a scuffle, in which some 
American citizens were killed, sent the 
Caroline over the falls. In the conten- 
tion which followed, the issue was 
raised as to whether the conditions for 
the exercise of the right of self-defense 
had been met. Webster formulated a test 
which has since met with general ac- 
ceptance. He noted that self-defense 
must arise out of an instant and over- 
whelming necessity, leaving no choice of 
means and no mcment for deliberation. 
Additionally, the action taken must 
involve nothing unreasonable or exces- 
sive "since the act justified by the 
necessity of self-defense must be limited 
by that necessity and kept clearly 
within it." 22 

The rule of the Caroline case was 
subjected to some criticism on grounds, 
inter alia, that the conditions it pro- 
nounced were somewhat vague. Be that 
as it may, the case is generally recog- 
nized as an authoritative pronounce- 
ment of customary international law,, 
and if state practice is taken together 
with the Caroline case, a reasonably 
clear basis for the exercise of the cus- 
tomary right of self-defense emerges: 

• Its exercise must be in response to 
actual or threatened violence. 

• The actual or threatened violence 
must be of such a nature as to create an 
instant and overwhelming necessity to 
respond, and 

• The response taken must not be 



144 



excessive or unreasonable in relation to 
the violence being inflicted or threat- 
ened. 

Reprisals. While self-defense in cus- 
tomary international law can be viewed 
as a reaction by states to violence being 
inflicted or threatened by another state, 
reprisal is a means of forcible self-help 
to redress wrongs already inflicted. Self- 
defense as a means of self-help is recog- 
nized in both international and domes- 
tic law. Reprisal is not. At least in 
modern times, reprisal is unique to the 
international arena. In domestic society 
central authority is frequently unavail- 
able to forestall the immediate threat of 
force, and hence the doctrine of self- 
defense has prevailed; but in the absence 
of immediacy there are institutions and 
methods in modern domestic society to 
peacefully redress wrong, and hence 
retaliatory self-help is not endorsed. 24 

The first legal doctrine to emerge was 
one involving private reprisals. In Eng- 
lish practice acts of private reprisal first 
made a significant appearance in the late 
13th century. They were characterized, 
typically, by the seizure of goods and 
property on the high seas. By the late 
15th and the 16th centuries, reprisals by 
private seizure had become a generally 
recognized method of forcible self- 
help. 25 

Private reprisals prevailed until the 
18th century. During their existence 
they had certain unchanging character- 
istics. They were authorized by the 
sovereign of an individual against whom 
an alleged crime had been committed 
(generally robbery or failure to pay a 
debt) by a subject or agent of another 
state. Additionally, the legal right to 
pursue reprisals rested upon the pre- 
existence of a denial of justice. By this 
was meant that redress had been sought 
from the sovereign of the injuring party 
but to no avail. Finally, retaliation was 
to be had against the property and 
people of the offending state for an 
amount susceptible of expression in 



pecuniary terms and equivalent to loss 
plus reasonable costs. 26 

In general, the practice of private 
reprisals acquired a high degree of uni- 
formity in international law. Regula- 
tion, both local and by treaty, carefully 
channelized the evolving doctrine into a 
fairly structured method of achieving 
redress of certain amounts under con- 
trolled conditions. Thus the potential 
abuses of the system were kept reason- 
ably in check. Occasionally, however, 
when reprisals were used for political 
purposes, as in wars of reprisal, they 
departed from established norms and 
became unpredictable. This unpre- 
dictability was the chief characteristic 
of public reprisals, which superseded 
private reprisals in the 18th century. 

The distinguishing aspect of public 
reprisals was the authorization of sei- 
zures as a punishment of the offending 
state. They were carried out by states, 
as opposed to individuals, and although 
based on the notion of denial of justice 
for a wrong committed, the wrong did 
not have to be against any individual 
person nor were the seizures limited by 
any notions of loss plus costs. 

Measures of reprisal commonly used 
included: (a) embargo of the offending 
state's ships found in the waters of the 
wronged state, (b) seizure of the in- 
juring state's ships on the high seas, and 
(c) pacific blockade of the coasts of the 
offending state against the ships of that 
state. 29 

In the Naulilaa arbitration of 1928 30 
there appears the most authoritative 
statement of the customary law of 
reprisal. In October 1914, while Portu- 
gal was still neutral, a party from 
German Southwest Africa entered Por- 
tuguese African territory. A misunder- 
standing arose due to the incompetence 
of the German interpreter; shots were 
fired, and a German official and two of 
his officers were killed. By way of 
reprisal, the Governor of German South- 
west Africa sent a punitive force into 
Portuguese territory. The force attacked 



145 



several frontier posts and drove out the 
garrison from Naulilaa. In the evacuated 
area a native uprising occurred, the 
suppression of which necessitated a con- 
siderable expedition by the Portuguese. 
A special arbitral tribunal considered 
Germany's responsibility for all that had 
ensued. Germany contended that her 
action was a legitimate reprisal. The 
arbitrators rejected this plea. In so doing 
they noted: 

Reprisals are acts of self-help by 
the injured State, acts in retali- 
ation for acts contrary to interna- 
tional law on the part of the 
offending State, which have re- 
mained unredressed after a de- 
mand for amends. In consequence 
of such measures, the observance 
of this or that rule of interna- 
tional lkw is temporarily sus- 
pended in the relations between 
two States. They are limited by 
considerations of humanity and 
the rules of good faith, applicable 
in the relations between States. 
They are illegal unless they are 
based upon a previous act con- 
trary to international law. They 
seek to impose on the offending 
State reparation for the offence, 
the return to legality and the 
avoidance of new offences. 3 ' 
From this statement three conditions 
for the legitimacy of reprisals in cus- 
tomary law can be discerned: 

• There must have been an illegal act 
on the part of the target state. 

• Demand for redress must be made 
and redress not provided, and 

• The measures taken must not be 
excessive, i.e., out of all proportion to 
the act which motivated them. 

Quite obviously, the foregoing condi- 
tions did not provide a sure and certain 
blueprint for taking legitimate reprisals 
in any given case. There were questions 
as to whether demand for redress must 
always be made, even when it was 
obvious that none would be afforded 
and when effective retaliation made 



time of the essence. Likewise, there 
were learned debates on what in any 
given context amounted to proportional 
response. Finally, there was contention 
as to what state acts were illegal in 
international law so as to permit taking 
reprisals in the first place. Neverthe- 
less, as a general proposition, the rule of 
the Naulilaa incident fulfilled the task 
of enunciating concepts, with a con- 
sensus in state practice, which served to 
provide decisionmakers with useful 
standards against which to measure their 
policies and consequently preserve at 
least minimum conditions of order and 
restraint in the use of force. 

Intervention. This final category of 
self-help is the most amorphous of the 
three, being more a method of applying 
force than a conceptual basis or justifi- 
cation for its use. The legitimacy of 
intervention is, by and large, to be 
found in other categories of self-help. 
Thus in customary law there were inter- 
ventions in the affairs of other states by 
way of reprisal (as in the Naulilaa 
incident) or for purposes of self-defense 
(as in the Caroline case). 

But interventions also occurred when 
neither of these bases was present. It has 
been noted that on many occasions in 
the 19th century the Great Powers 
intervened in the affairs of other states 
in order to impose the settlement of a 
question which threatened the peace of 
Europe. This type of intervention was a 
dictatorial interference with the inde- 
pendence of other states. It was only 
justified if it was authorized by treaty 
or was undertaken to protect nationals 
of the intervening state abroad. Beyond 
this intervention was based on sheer 
power rather than law. 33 

Additionally, there was some support 
for the notion that states could inter- 
vene in a foreign state for humanitarian 
purposes, i.e., to prevent a state from 
committing atrocities against its own 
subjects, but such support was far from 
unanimous. The prevailing view was that 



116 



a state's treatment of its own subjects 
was a matter exclusively within its own 
jurisdiction. 34 Humanitarian interven- 
tion in this context cannot truly be 
conceded therefore as a part of positive 
customary international law. State prac- 
tice would seem to have cynically rele- 
gated the application of this principle to 
those areas of the world considered 
un-Christian and uncivilized. 35 

X X X X X X X 

This then was the state of the law of 
forcible self-help at the time of the 
creation of the League of Nations after 
World War I. Nor was the law signifi- 
cantly affected by the League. While 
this organization aspired to shift the 
competence to use force to a corporate 
body rather than leaving it with individ- 
ual states, the focus of the League was 
on precluding war rather than forcible 
measures short of war, and conse- 
quently no prohibition against reprisals 
or interventions or limited actions in 
self-defense appear in the covenant. 

It may well have been that resort to 
force, at least by way of intervention or 
reprisal, was inimical to the express 
obligation in the covenant to settle 
disputes by peaceful means. Indeed, 
distinguished authority has made this 
exact point. 36 But the fact remains that 
there were no express prohibitions in 
the covenant, and in the only case on 
this point submitted by the Council of 
the League to judicial review, forcible 
self-help v/as not prohibited. 

The case involved a situation wherein 
Italy in 1923 bombarded and occupied 
the island of Corfu off the coast of 
Greece, claiming that the action was a 
legitimate reprisal for the murder of an 
Italian general by Greek extremists. The 
general had been acting as chairman of 
the Greek-Albanian boundary commis- 
sion. The League Council presented to a 
committee of jurists the following 
question: 



Are measures of coercion which 
are not meant to constitute acts 
of war consistent with the terms 
of Articles 12 to 15 of the Cove- 
nant when they are taken by one 
Member of the League of Nations 
against another Member of the 
League without prior recourse to 
the procedure laid down in those 
articles? 
The jurists replied: 

Coercive measures which are not 
intended to constitute acts of war 
may or may not be consistent 
with the provisions of Articles 12 
to 15 of the Covenant and it is for 
the Council, when the dispute has 
been submitted to it, to decide 
immediately, having due regard to 
all the circumstances of the case 
and to the nature of the measures 
adopted, whether it should recom- 
mend the maintenance or the 
withdrawal of such measures. 
[ Emphasis supplied. ] 
The delphic nature of this reply 
provided solace for all concerned. It was 
interpreted both as prohibiting forcible 
reprisals and as not prohibiting them. 
Objectively, however, the most that can 
be said is that the customary law in 
regard to forcible self-help may have 
been stripped of some of its old security 
by the reply, but it was not changed. 
Accordingly, while incidents of forcible 
self-help diminished between World War 
I and World War II, the law was not 
significantly altered from 1900 until the 
creation of the U.N. Charter in June 
1945. 38 

THE U.N. CHARTER AND 
FORCIBLE SELF-HELP 

Force Prohibited. While the League 
Covenant did not significantly affect the 
right of states to resort to forcible 
measures of self-help short of war, it 
did, as noted in previous discussion, 
signal a significant shift in the perspec- 
tive of nations vis-a-vis the application 



147 



of force generally. 39 A central corpo- 
rate authority was viewed as being 
better able to insure that the use of 
armed force was kept to a minimum. 
Unilateral state action was recognized as 
rarely based on real objectivity and 
frequently subject to national myopia 
and even personal whim. 

The League of Nations, of course, 
died for a variety of reasons not perti- 
nent to this essay, but the notion that 
competence to apply armed force 
should reside in a central authority did 
not die with it. The idea persisted and 
found expression again, after World War 
II, in the Charter of the United Na- 
tions. 40 

The drafters of the U.N. Charter, 
unlike the drafters of the League Cove- 
nant, did not make the mistake of 
limiting their specific proscriptions to a 
condition of war. They chose rather to 
proscribe the threat or use of force. 
Accordingly, to the extent that pro- 
scriptions exist, forcible measures of 
self-help are not excepted, at least not 
by any narrow process of definition as 
was the case under the League Cove- 
nant. 

Charier Proscriptions. Article 2, para- 
graph 3, of the charter provides that, 
"All Members shall settle their interna- 
tional disputes by peaceful means in 
such a manner that international peace 
and security and justice are not en- 
dangered." 41 Having made this positive 
pronouncement, paragraph 4 then states 
the negative corollary: "All Members 
shall refrain in their international rela- 
tions from the threat or use of force 
against the territorial integrity or politi- 
cal independence of any state, or in any 
other manner inconsistent with the Pur- 
poses of the United Nations." 42 

The third relevant provision with 
respect to the use of force by states is 
found in article 51 of the charter. This 
article prescribes the conditions for the 
use of force in self-defense. It provides 
that: 



Nothing in the present Charter 
shall impair the inherent right of 
individual or collective self- 
defense if an armed attack occurs 
against a Member of the United 
Nations, until the Security 
Council has taken measures neces- 
sary to maintain international 
peace and security. Measures 
taken by Members in the exercise 
of this right of self-defense shall 
be immediately reported to the 
Security Council and shall not in 
any way affect the authority and 
responsibility of the Security 
Council under the present Charter 
to take at any time such action as 
it deems necessary in order to 
maintain or restore international 
peace and security. 43 
Taken together, it can be argued that 
these three provisions present a clear 
and straightforward statement with 
respect to the use of armed force by 
states in international relations. Its use 
is prohibited except in the face of an 
armed attack, and then the use of force 
is permitted only until the Security 
Council acts. 44 

The charter then goes on to establish 
in the Security Council the competence 
and capability to employ armed force to 
counteract threats to the peace, 
breaches of the peace, and acts of 
aggression. Article 42 provides that 
when economic, diplomatic, and other 
nonforcible sanctions fail, the Security 
Council "may take such action by air, 
sea or land forces as may be necessary 
to maintain or restore international 
peace and security." 45 Article 43 in 
turn provides that the member nations 
will make forces and facilities available 
to the Council for this purpose. 46 
Article 47 even creates a Military Staff 
Committee to advise and assist the 
Security Council and be responsible 
under the Council for the strategic 
direction of armed forces placed at its 
disposal. 

In chapter VIII the charter then 



148 



provides an alternate methodology for 
preserving the peace. It recognizes the 
existence of regional arrangements and 
agencies and notes that these agencies 
have competence to deal with "matters 
relating to the maintenance of interna- 
tional peace and security as are appro- 
priate for regional action provided that 
such arrangements or agencies and their 
activities are consistent with the Pur- 
poses and Principles of the United Na- 
tions." 47 In addition, regional agencies 
may even take enforcement action, but 
not without authorization from the 
Security Council. 48 

Thus the charter has set up a com- 
plete scheme for the transfer of the 
competence to apply armed force from 
individual states to a central supra- 
national authority. When its provisions 
are considered \in vacuo, there are lew 
instances where forcible measures of 
self-help by individual states can be 
legitimated. Use of force is prohibited, 
therefore forcible reprisals and interven- 
tions are prohibited. Self-defense is per- 
mitted until the Council acts, but only 
in the face of an armed attack; although 
when this occurs the party attacked 
may be assisted by its allies, since 
collective self-defense is recognized. 

In short, it has been advanced that 
the customary law in regard to forcible 
measures of self-help has been virtually 
abrogated by the treaty provisions of 
the charter. 49 This view finds support 
in a recent resolution of the U.N. 
General Assembly. 

In 1970 the General Assembly re- 
ceived a report of a Special Committee 
on Principles of International Law Con- 
cerning Friendly Relations and Coopera- 
tion Among States. The report was 
approved and issued as a "Declaration 
on Principles of International Law Con- 
cerning Friendly Relations and Coopera- 
tion Among States in Accordance with 
the Charter of the United Nations." 50 

The text of the declaration is quite 
lengthy, but a careful reading leads to 
the inescapable conclusion that the 



General Assembly is unquestionably of 
the view that the unilateral use of force 
by states is limited, under the charter, 
to the narrowest possible circumstances. 
It is noted that the threat or use of 
force "constitutes a violation of interna- 
tional law and the Charter of the United 
Nations and shall never be employed as 
a means of setding international is- 
sues." There follows, by way of 
illustration, a variety of specific situa- 
tions wherein states are charged not to 
resort to force. In the course of these 
illustrations specific reference is made 
to reprisals and intervention. The dec- 
laration notes: "States have a duty to 
refrain from acts of reprisal involving 
the use of force." 52 With respect to 
intervention, it is provided: 

No State or group of States has 
the right to intervene directly or 
indirectly for any reason whatever 
in the internal or external affairs 
of any other State. Consequently 
armed intervention and all other 
forms of interference or at- 
tempted threats against the per- 
sonality of the State or against its 
political, economic and cultural 
elements are in violation of inter- 
national law. 53 

Despite the pronouncements of the 
charter and the resolution of the Gen- 
eral Assembly, however, if international 
law is properly defined as those rules for 
the conduct of interstate relations to 
which states bind themselves in their 
activities, 54 then the best that can be 
said for the charter provisions, in light 
of state practice since 1945, is that they 
represent what the world community 
believed the law ought to be rather than 
what it is. It is submitted that the 
members of the United Nations have 
agreed to be bound by the strict charter 
limitations only to the extent that the 
central authority is capable of filling the 
gap left by a state's renunciation of the 
right to use force in its own interest. 5 
Beyond this, while the charter provi- 
sions remain as a moral proscription 



149 



against the use of force, they cannot be 
said, in actuality, to provide a real test 
of its legitimate application in any 
particular case. 56 

We must look elsewhere to find 
what, if any, real tests exist for the 
legitimate use of forcible measures of 
self-help. It will be the purpose of the 
next section to attempt to elucidate 
what that test might be. 

FORCIBLE SELF-HELP 
SINCE THE CHARTER 

The Effect of the Charter. Although 
the charter does not provide a realistic 
statement of what forcible measures of 
self-help are presently legitimate, we 
cannot simply harken back to the cus- 
tomary rules of international law and 
proclaim th4t these still provide the 
appropriate measure, for the charter has 
left its mark. Although nations still 
employ force against each other, the 
thou shalt not philosophy of the charter 
has had the effect of negating, to some 
extent, general acceptance of the cus- 
tomary law rules. With this in mind it 
will be useful to reexamine the classical 
categories of forcible self-help in an 
effort to determine what state conduct 
is still generally considered legitimate. 

Self-Defense. There is some justifica- 
tion for the contention that since 1945 
the right of self-defense which has re- 
ceived general acceptance has a content 
identical with the right as expressed in 
article 51 of the U.N. Charter, i.e., that 
it is limited to being exercised only in 
the case of armed attack. 57 The terms 
of article 51, or very similar terms, have 
appeared in several important multi- 
lateral treaties and draft instruments. 
Article 3 of the Inter-American Treaty 
of Reciprocal Assistance of 1947 pro- 
vided for individual or collective self- 
defense in case of an armed attack. 5 * 
Again, in the Japanese Peace Treaty, 
article 51 of the U.N. Charter is referred 
to expressly. 59 Also, the Draft Declara- 



tion on .Rights and Duties of States 
adopted by the International Law Com- 
mission in 1949 provided in article 12 
that every state has the right of individ- 
ual or collective self-defense against 
armed attack. 60 

Authoritative publicists also have ex- 
pressed the view that the right of 
self-defense is thus narrowly limited. 
They have argued that despite the prob- 
lems inherent in the restricted view of 
this right, to permit any more latitude 
than is contained in the wording of 
article 51 would be to open the door to 
so many abuses as to impose an un- 
acceptable strain on the requirement of 
international order. 6 l 

At the other end of the spectrum 
there is, however, contention that 
forcible measures may be legitimately 
taken in self-defense whenever national 
security is threatened, whether it be by 
specific armed attack, threat of attack, 
or any other direct or indirect aggres- 
sion. In this connection Israel has fre- 
quently proclaimed that her entire pos- 
ture is one of self-defense and that all 
forcible actions taken are taken on that 
basis. In 1966 before the Security Coun- 
cil, the Israeli Representative noted 
that: "Whatever we do, whatever our 
government decides to do, it is done in 
order to defend and protect our na- 
tional independence and our national 
security." 62 Again in a Security Council 
debate in March 1969 it was stated by 
the Israeli Representative: "Yesterday's 
Israeli action was an act of self-de- 
fense. . . . Israel has been in a state of 
self-defense since 1 948. It will so remain 
until the Arab Governments agree to 
end the war waged against Israel and 
conclude peace." 63 

Also, in the recent India-Pakistan 
conflict one of the claims made by India 
was that her incursion into East Pakis- 
tan was in self-defense. Yet it was 
obvious that no attack against Indian 
territory was occurring nor was one 
threatened. In her view, her security was 
imperiled by the conditions existing in 



1 .-)() 



East Pakistan and particularly by the 
great influx of Bengali refugees into 
Indian territory which was depleting her 
slender food reserves. 64 

Additionally, certain publicists have 
been interpreted as supporting this 
broad view of the right of self-defense. 
In contending that all or at least some 
of a state's "legal rights" may be de- 
fended by force, it has been argued, 
rightly or v/rongly, that these writers are 
really once again equating the right of 
self-defense with the right of self-preser- 
vation. 

Security Council response to claims 
that various resorts to force have been 
in self-defense has not been particularly 
helpful in carving out currently ac- 
ceptable conditions for the exercise of 
this right. It would seem, however, that 
the Council, in\general, adopts a restric- 
tive view. 6 In numerous cases it has 
denounced Israeli action taken osten- 
sibly in self-defense but where no spe- 
cific attack was occurring. 66 Likewise 
the Council condemned the actions of 
the British against Yemen in 1964. In 
that instance the British had carried out 
air attacks against Yemen after Yemen 
had made a series of attacks on the 
South Arabian Federation. The British 
argued before the Security Council that 
its actions had been in self-defense, but 
the Council declined to accept this plea 
and condemned the British action as 
"incompatible with the purposes and 
principles of the United Nations." 67 

In between the two extreme posi- 
tions discussed above, argument has 
raged pro and con across the entire 
spectrum of possible limitations on the 
right of self-defense, and it is exceed- 
ingly difficult to pick a point and say 
"here is where the line can safely be 
drawn." It is submitted, however, that 
wherever the line should be drawn a 
considerable body of opinion would 
argue that the test of the Caroline case 
still presents a generally acceptable set 
of limiting conditions for exercising the 
right of self-defense. 6 * 



Under this test a nation is permitted 
to use force in self-defense in the face of 
either an actual armed attack or in 
anticipation of such an attack, provided 
there is an instant and overwhelming 
necessity to respond. The argument in 
support of at least this much self- 
defense takes the position that it is 
generally consistent with state practice 
and that to limit self-defense short of 
the anticipatory phase at this time is to 
create a condition which is both inade- 
quate and totally unrealistic. 

The proponents of this position also 
argue that article 51 of the charter, 
properly interpreted, permits antici- . 
patory self-defense. Article 51 states 
that nothing shall impair the "inherent 
right of individual or collective self- 
defense" [emphasis supplied], and, the 
argument goes, since the inherent right 
always included anticipatory self- 
defense, it remains legitimate under the 
charter. In answer to the contention 
that the phrase "if an armed attack 
occurs" limits the right, it is argued that 
this phrase is merely descriptive of a 
particular category of self-defense; that 
it was desired to underline that the right 
of individual, and more especially of 
collective, self-defense had not been 
taken away in the process of conferring 
power on the Security Council to take 
preventive and enforcement measures 
for the maintenance of peace. 6 9 

But whether article 51 permits antici- 
patory self-defense or not, states have 
consistently acted on this basis. More- 
over, to limit self-defense to an armed 
attack scenario seriously underestimates 
the potential of contemporary weapons 
systems 70 and also discounts even the 
possibility that nonmilitary aggression 
could achieve a level of coercion com- 
parable in intensity and proportion to 
an armed attack. 

Reprisals. Of the three categories of 
forcible self-help under discussion, the 
law of reprisals has probably been most 
severely limited since the adoption of 



151 



the U.N. Charter. It has been widely 
conceded that this method of self-help 
is now generally unacceptable. 72 Thus 
states have rarely attempted to justify 
their use of force on the grounds of 
reprisal. In the Gulf of Tonkin incident 
the United States argued that its actions 
were taken in self-defense. 73 This was 
also the contention of the British in the 
Yemen raid. Also, Israel has argued that 
her forays against the Arabs were ac- 
tions in self-defense, although there is 
little doubt that in the precharter era 
many of them would have been charac- 
terized as simply reprisal actions. 

Notwithstanding that reprisal is not 
generally accepted as a legitimate basis 
for employing forcible measures of self- 
help, there is some indication that retali- 
atory action can still be legitimate under 
certain circumstances. One illustration is 
to be found in the Corfu Channel 



case 



74 



In May 1946 Albanian shore bat- 
teries fired without warning on two 
British cruisers making passage through 
Albanian territorial waters in the North 
Corfu Strait. The United Kingdom, 
claiming a right of innocent passage, 
subsequently (in October of the same 
year) sent two British cruisers and two 
destroyers through the strait to assert 
this right. The crews were at action 
stations with instructions to fire back if 
attacked. The two destroyers were 
mined with a heavy loss of life. There- 
after, the British sent a large minesweep- 
ing force into Albanian waters and 
found a number of newly laid mines. 

Subsequently, the case was referred 
to the International Court of Justice. 
Albania claimed inter alia that the 
British had violated her sovereignty in 
steaming through the strait in October. 
The court on this issue held for the 
United Kingdom. It stated that the 
British mission was designed to affirm a 
right which had been unjustly denied, 
and having carried out the action in a 
manner consistent with the require- 
ments of international law, the legality 



of the measure taken could not be 
disputed. 

It has been argued that this decision 
suggests the proposition that what is in 
reality a reprisal action (i.e., a non- 
innocent passage of an armed force 
through territorial waters) may be legiti- 
mate if its purpose is to affirm a legal 
right against an expected unlawful at- 
tempt to prevent its exercise. 75 It ap- 
pears clear from the Court's con- 
demnation of the British for violating 
Albanian territorial waters to search for 
mines after the destroyers were sunk, 
that retaliation simply to obtain redress 
for rights already violated cannot be 
condoned. 76 Nevertheless, the case 
would seem to imply that, at least 
exceptionally, a state may be legiti- 
mately able to use force in other than 
self-defense and without reference to 
the United Nations in order to secure 
the exercise of certain legal rights. 

Intervention. In discussing the cus- 
tomary international law with regard to 
intervention, it was noted that in many 
cases this measure of self-help was legiti- 
mate not by virtue of any intrinsic 
justification, but rather because it was 
simply a method of effecting a legiti- 
mate reprisal or of acting in self-defense. 
Therefore, insofar as interventions are 
premised on these justifications, they 
are of necessity limited since the charter 
in the same way and to the same extent 
that reprisals and self-defense have been 
limited. 

Beyond this, while states have made 
extravagant claims for the legitimacy of 
intervention utilizing a variety of justifi- 
cations, it would seem that there are 
only three circumstances where this 
type of activity has been generally 
accepted: To protect nationals where 
intervention is requested in the face of 
an external threat and in certain special 

7 7 

cases. 

The U.S. intervention in the Domini- 
can Republic in 1965 is illustrative of 
the first of these circumstances. In that 



L52 



case, during the course of a rebellion, 
the Dominican authorities stated that 
they "could no longer control the situa- 
tion, that American and foreign lives 
were in desperate danger and that out- 
side forces were required." In re- 
sponse to an urgent appeal from the 
U.S. Ambassador, 400 U.S. Marines 
were put ashore, in the words of Presi- 
dent Johnson "... in order to give 
protection to hundreds of Americans 
who are still in the Dominican Republic 
and to escort them safely back to this 
country. 

The United States was subject to 
severe criticism for retaining its troops 
in the Dominican Republic long after 
any necessity existed for the protection 
of nationals, but its initial actions were 
considered justified by many as a matter 
of urgent necessity in order to protect 
the lives of U.S. nationals. 80 Protection 
of nationals was one of the legitimate 
grounds for intervention in customary 
international law. It is submitted, not- 
withstanding the sentiments of the 
General Assembly that states have no 
"right to intervene directly or indirectly 
for any reason whatever in the internal 
or external affairs of any other 
state," 81 that intervention for this pur- 
pose in the future would be hard to 
fault. 82 

The United States and British actions 
in Lebanon and Jordan provide illustra- 
tions of the second circumstance in 
which intervention would probably be 
generally acceptable. In both cases the 
respective governments had requested 
United States and British help to assist 
in repelling attempts at subversion di- 
rected from a neighboring state. While 
the United Nations was uneasy about 
the activity, neither the United States 
nor the United Kingdom was con- 
demned for its actions. By way of 
contrast, the Soviet Union was soundly 
condemned for its armed intervention in 
Hungary in 1956 for the purpose of 
suppressing a popular internal up- 



rising 



8 3 



It would seem, therefore, that where 
the threat is external and a state re- 
quests assistance a third state may legiti- 
mately intervene in its behalf. 84 The 
question of whether the threat is ex- 
ternal, however, can prove in itself to be 
highly controversial. Thus there was 
considerable, albeit unjustified, criticism 
of the U.S. intervention in Vietnam on 
the grounds that, like Hungary, Vietnam 
was a case of popular internal uprising 
rather than external threat. Even this 
criticism implies, however, that if in fact 
the threat is external, intervention may 
be legitimately undertaken. 

The third type of circumstance 
wherein it would seem states could 
legitimately intervene within the terri- 
tory of another state are the special 
cases of necessity. 

A serious danger to the territory of a 
state may arise either as a result of a 
natural catastrophe in another state or 
as a result of the other state deliberately 
or negligently employing its natural 
resources to the detriment of the inter- 
vening state. 8 * For example, the reser- 
voirs of State A on the upper reaches of 
a river might be damaged by natural 
forces posing a threat of flooding to 
State B on the lower reaches. Again, 
State A might negligently or wantonly 
flood the territory of State B. In either 
case, even publicists who take a limited 
view of a state's right to use force have 
conceded that intervention would be 
acceptable provided the injuring state 
has not provided a timely remedy and 
the Security Council is immediately 
advised. 87 

In the foregoing discussion the at- 
tempt has been made to present a 
conservative estimate of the extent to 
which classic measures of forcible self- 
help are still generally acceptable in the 
world community. This estimate, how- 
ever, hardly represents the full spectrum 
of situations in v/hich states havs felt 
required to use forcible self-help. Ac- 
cordingly, it becomes necessary for 



153 



decisionmakers to know what, if any, 
general criteria exist which can be used 
to evaluate the legitimacy of the use of 
force in the many instances which do 
not fit neatly into one of the established 
patterns. 

SUGGESTIONS FOR 
DECISIONMAKERS 

The Falk Criteria. In light of the 
reaction of the Security Council to 
specific claims and the General Assem- 
bly's Declaration on Principles of Inter- 
national Law and in view of the general 
thrust of most authoritative commen- 
tary, it is doubtful that state resort to 
force will be endorsed in any situation 
other than those discussed previously. 
This is not to say, however, that all 
other resorts to force will be con- 
demned. On the contrary, there is sub- 
stantial evidence to suggest that state 
resort to force in a variety of circum- 
stances, if not applauded, will at least 
not be indicted. 88 The question for 
consideration then becomes, under 
what specific conditions can resort to 
force by states be rendered tolerable? 

The one word answer to this ques- 
tion is "reasonableness." But it is not 
terribly helpful for decisionmakers to be 
told that their conduct will be tolerated 
if reasonable. The term is intuitively 
acceptable as a measure of conduct, but 
it is also extremely vague with reference 
to any given circumstances. It becomes 
necessary, therefore, to determine what 
are the criteria for reasonable state 
conduct with respect to the use of 
force. 

Considerable work has been done by 
legal scholars in an effort to delineate 
these criteria. One effort in particular is 
worthy of evaluation here. Richard A. 
Falk has developed a number of criteria 
which would seem to be relevant. 89 
They provide that the burden of per- 
suasion to legitimate the use of force is 
on the user; that it must connect its use 
of force to the protection of territorial, 



national, or political integrity; that a 
substantial link must exist between the 
provocation and the claim of retaliation; 
that a diligent effort must be made to 
seek pacific settlement, including re- 
course to international organizations; 
that the use of force must be propor- 
tional to the provocation and calculated 
to avoid its repetition; that the force 
must be directed primarily at military 
targets; that the user should make a 
prompt explanation of its conduct be- 
fore the international community; that 
the use of force must clearly demon- 
strate to the target government what 
constituted the provocation; that the 
user cannot achieve its purpose by 
acting within its own domain; that a 
search for pacific settlement should be 
made, recognizing the interests of the 
target state; and that a disposition to 
respect the will of the international 
community must be evident. 

These criteria in general furnish an 
excellent summary of practical condi- 
tions for legitimately employing forcible 
self-help. Some criticism is indicated 
however. The fourth criterion requires 
that diligent efforts be made initially to 
obtain satisfaction by pacific means. It 
is submitted that this criterion should 
explicitly state that peaceful solution 
must be attempted, if possible. Without 
specifically indicating this, the impres- 
sion is left that peaceful settlement 
must always be attempted. In given 
circumstances such a requirement would 
be completely unrealistic. 

A more serious criticism of Falk's 
effort, however, arises from a considera- 
tion of his second criterion. The use of 
force is limited only by the requirement 
that there be a connection between it 
and the protection of territorial, na- 
tional, or political integrity. It is sub- 
mitted that requiring nothing more than 
a connection raises the distinct possi- 
bility that force could be used in such a 
way as to be indistinguishable from the 
polar position of completely un- 
inhibited behavior. 90 There is always 



154 



some link which can be established 
between a desired use of force and the 
broad concepts of national, political, 
and territorial integrity. It is necessary 
that decisionmakers operate under more 
substantial restraints. Accordingly, it is 
suggested that resort to force must 
presuppose the existence of an immi- 
nent and significant threat to the con- 
tinued existence of a nation's political 
independence and territorial integrity. 
In a word, there must be a clear and 
present danger that unless forcible ac- 
tion is taken, the independence or in- 
tegrity of the acting state will be seri- 
ously compromised. 

With these modifications, it is sub- 
mitted that Falk has enunciated a useful 
framework within which decisionmakers 
can both evaluate a prospective use of 
force and develop methodologies for its 
application. It has been argued that this 
approach completely ignores the pro- 
scriptions of the charter law, 91 but this 
contention, however, ignores the fact 
that international law, to be law, re- 
quires consensus and that the only 
consensus with respect to the charter 
provisions that can be observed from 
state pronouncement and practice is 
that they represent aspirational prin- 
ciples rather than realistic norms by 
which states are presently willing to 
abide. 

Saying this does not derogate the 
U.N. Charter provisions. They are useful 
as a fundamental restraint in the sense 
that all applications of force start from 
the philosophical premise that they are 
suspect. However, if it is insisted that 
articles 2(3), 2(4), and 51 represent the 
"whole law and the prophets" with 
respect to the use of force, the result 
could be complete lack of inhibition on 
the part of states and total abrogation 
of even minimum conditions of public 
order. Insisting on everything would 
probably result in achieving precisely 
nothing. 

One question remains: Granted that 
Falk s criteria, as modified, appear to 



provide a framework for evaluating and 
managing the use of force, are they in 
fact illustrative of actual state practice 
which has been accepted by the world 
community? Before turning to a con- 
sideration of this issue it will be helpful 
to summarize and reorder the criteria. 
The use of force by states may be 
acceptable provided: 

• That acts of provocation by the 
target state have raised an imminent and 
significant threat to the continued exis- 
tence of a nation's political indepen- 
dence and/or territorial integrity. 

• That, if possible, a diligent effort 
has been made to obtain satisfaction by 
pacific means. 

• That recourse to international or- 
ganizations is had as practicable. 

• That a state accepts the burden of 
persuasion and makes a prompt explana- 
tion of its conduct before the relevant 
organ of community review, showing a 
disposition to accord respect to its will. 

• That the acting state's purpose 
cannot be achieved by acting within its 
own territory. 

• That the use of force is propor- 
tional to the provocation and directed 
against military and paramilitary targets 
and clearly indicates the contours of the 
unacceptable provocation. 

• That the user of force continues to 
seek a pacific settlement of the under- 
lying dispute on reasonable terms. 

The Cuban Quarantine. The interdic- 
tion by the United States of the intro- 
duction of Soviet nuclear missiles into 
Cuba provides an outstanding example 
of a state using coercion in a manner 
generally acceptable to a world com- 
munity notwithstanding that its use did 
not properly qualify as either self- 

Q 

defense, reprisal, or intervention. 

It is true that the U.S. actions have 
subsequently been criticized by some 
publicists. 93 However, in the world 
community, objection to the U.S. en- 
deavor at the time was minimal -at least 
in the states beyond the sphere of 



155 



Soviet influence. 94 Moreover, the 
United Nations itself in no way con- 
demned the United States and many 
states specifically affirmed the quaran- 

+^« 9 5 

tine. 

With Falk's modified criteria in 
mind, it will be useful to examine the 
U.S. action. 

At the outset the United States 
amassed a body of incontrovertible evi- 
dence that the Soviets were in the 
process of establishing offensive missile 
bases in Cuba. The missiles were capable 
of massive destruction throughout the 
Western Hemisphere. It was evident that 
the Soviet effort was a deliberate at- 
tempt to significantly alter the status 
quo and could have serious conse- 
quences for national and hemispheric 
security. 96 

With the \evidence in hand and in the 
face of a bland assurance from the 
Soviet Union that they would never 
place offensive weapons in Cuba, the 
United States developed a carefully 
orchestrated response. 97 First it was 
determined that the response would 
take the form of a naval "quarantine" 
rather than a military attack. The 
strongest argument against armed attack 
was that it would erode, if not destroy, 
the moral position of the United States 
throughout the world. 98 The quaran- 
tine would have some of the incidents 
of a blockade 99 but would be limited 
initially to interdicting the shipment of 
offensive military equipment to Cuba. It 
was hoped that this limited coercive 
force would produce the desired re- 
sults. 100 

Having decided on a course of action, 
the United States then sought the sup- 
port of the Organization of American 
States. The OAS was apprised of the 
circumstances of the threat and en- 
couraged to support and cooperate in 
the U.S. action. The response was a 
unanimous affirmation of the U.S. posi- 
tion, and the OAS resolved to take all 
measures necessary to terminate the 



threat to "the peace and security of the 
hemisphere. 101 

The OAS resolution was immediately 
conveyed to the United Nations. The 
President of the United States almost 
simultaneously issued the Quarantine 
Proclamation and indicated that the 
quarantine would go into effect on the 
following day. This delay was provided, 
inter alia, to allow some time for the 
Soviets to divert vessels already at sea 
which were carrying prohibited cargoes. 
The United States also requested an 
urgent meeting of the U.N. Security 
Council. 102 

The backing of world powers was 
solicited and obtained. The OAS of 
course approved the effort, and the 
British, French, and West Germans an- 
nounced their support. While Soviet 
satellite states joined with the Kremlin 
in denouncing the U.S. action as piracy, 
world opinion generally ratified the U.S. 
stand. 103 

The quarantine was prosecuted in a 
forceful but carefully controlled man- 
ner. The Navy deployed 180 ships into 
the Caribbean. The Strategic Air Com- 
mand was dispersed to civilian landing 
fields around the country to lessen its 
vulnerability in case of attack. Missile 
crews were placed on maximum alert, 
and troops were moved into the south- 
eastern part of the United States. 104 
Warnings were broadcast at regular in- 
tervals by the U.S. Navy. These indi- 
cated that the Windward Passage, Yu- 
catan Channel, and Florida Straits might 
become dangerous waters. 1 ° 5 

The United States also announced a 
"Clearcert" plan. Shippers could obtain, 
in advance, a clearance certificate to 
send cargoes through the quarantine 
area. The purpose of this measure was 
to minimize interference with non- 
offensive shipping. Concurrently, addi- 
tional pressures were developed. Major 
maritime insurers ceased handling poli- 
cies for the Cuban trade. Also, Soviet 
shipments by air were curtailed when 



LS6 



nations refused to giant refueling privi- 
leges. 10 " 

The interception of vessels by the 
Navy was to be handled in a most 
circumspect manner. If a vessel refused 
to stop, the Navy was to shoot at its 
rudders and propellers in an effort to 
disable the vessel but avoid any loss of 
life or the sinking of the ship. 107 The 
first vessel stopped and boarded was 
personally selected by the President. It 
was the S.S. Manila, Panamanian owned 
and under Soviet charter. The United 
States was demonstrating to the Soviets 
that it was going to enforce the quaran- 
tine, and yet because Manila was not 
Soviet owned the boarding did not 
represent a direct affront requiring a 
response. 1 0R 

Along with the foregoing measures, 
the United States maintained constant 
communication both with Soviet diplo- 
mats and direcdy with Nikita Khrush- 
chev. The reason for the American 
action, its limits, and the conditions for 
its termination were made crystal clear. 
Efforts were also continued in the 
United Nations. Every opportunity was 
given the Russians to find a peaceful 
solution which would neither diminish 
their national security nor be a public 
humiliation. 1 09 

As is well known, the interdiction 
was successful. The missiles were re- 
moved and the quarantine was termi- 
nated. A serious threat to the peace of 
the Western Hemisphere had been re- 
moved by the collective application of 
force by the United States and the other 
nations of the regional alliance in such a 
manner as to be acceptable to world 
opinion. 

Evaluation. Falk's modified criteria 
reflect almost precisely the method- 
ology employed by the United States in 
the Cuban incident. Objective evidence 
of provocative acts was amassed, and it 
became clear that the acts constituted a 
significant threat both to the political 
independence and territorial integrity of 



the United States. 110 Efforts were 
made to peacefully resolve the matter 
with the Russians, but these proved 
unavailing in the face of their bald 
assertions that they were not intro- 
ducing missiles or other offensive 



weapons into Cuba 



1 1 1 



Having deter- 



mined to use force, the United States 
obtained the cooperation of its regional 
organization. Moreover, both the United 
States and the OAS immediately in- 
formed the United Nations, accepted 
the burden of persuasion, and clearly 
indicated a disposition to accord respect 
to its will. 1 12 

Obviously the United States could 
not achieve its purpose simply by acting 
within its own territory, but its inter- 
ference was not within the territory of 
any other nation but rather on the high 
seas. Moreover, the response was care- 
fully circumscribed to meet the concept 
of proportionality and clearly indicated 
that the missile buildup constituted the 
unacceptable provocation. 1 ' 3 

In this connection, the contours of 
the provocation were carefully ex- 
plained to the Soviets. In a letter to 
Khrushchev immediately after the quar- 
antine had been imposed, President 
Kennedy stated: 

In early September I indicated 
very plainly that the United States 
would regard any shipment of 
offensive weapons as presenting 
the gravest of issues. After that 
time, this Government received 
the most explicit assurance from 
your Government and its repre- 
sentatives, both publicly and pri- 
vately that no offensive weapons 
were being sent to Cuba. ... In 
reliance on these solemn assur- 
ances I urged restraint upon those 
in this country who were urging 
action in this matter at that time. 
And then I learned beyond doubt 
what you have not denied- 
namely that all those public assur- 
ances were false and that your 
military people had set out re- 



157 



cently to establish a set of missile 
bases in Cuba. . . . These activities 
in Cuba required the responses I 
have announced. 

I repeat my regret that these 
events should cause a deteriora- 
tion in our relations. I hope that 
your Government will take the 
necessary action to permit a resto- 
ration of the earlier situation. 1 I4 
Finally, throughout the course of the 
quarantine the United States continued 
its efforts to achieve a peaceful solution 
which would be sensitive to the needs of 
its adversary. 1 1 5 The emphasis was on a 
settlement which would enable the 
Soviets to retreat with grace. This fi- 
nally was achieved by accepting the 
Soviets', proposal that they would with- 
draw the missiles if we would guarantee 
not to invadfc Cuba. l 1 6 

The Falk modified criteria, then, 
represent not just a theoretical offering, 
but a real and substantial framework for 
decisionmaking, one which has been 
employed successfully and generally 
accepted by the world community. Con- 
versely, where these criteria have been 
largely ignored, the use of force by 
states has been subject to heavy criti- 
cism. Witness the condemnation of Rus- 
sia for her intervention in Czechoslo- 



vakia 



1 1 7 



the criticism of the U.S. 



retention of forces in the Dominican 
Republic, and most recently the Indian 
invasion of East Pakistan and the over- 
whelming number of Members of the 
United Nations who voted that she 
should withdraw. l ] 8 

CONCLUSIONS 

As indicated at the outset, the effort 
of this essay has been directed toward 
those charged with the awesome respon- 
sibility of managing the use of armed 
force. The need for restraint has been 
emphasized, and yet recognition has 
been given to the demonstrable fact that 
in many situations if a state is going to 
preserve its national interests, it must 



use force and do so unilaterally or in 
concert with its allies, but without 
reliance on the generally ineffective 
competence of the United Nations. 

Accordingly, in fulfillment of what is 
considered the legitimate legal function 
of enunciating rules of behavior having a 
consensual basis, some acceptable rem- 
nants of the specific customary laws of 
self-help have been discussed and some 
general criteria for a rational employ- 
ment of armed force have been evalu- 
ated. It is submitted that these rules and 
criteria strike a favorable balance be- 
tween the need for minimum public 
order and the requirement for national 
security and therefore have found gen- 
eral acceptance in international rela- 
tions. 

Quite obviously, however, they serve 
neither public order nor national se- 
curity to the extent that many might 
wish. Nationalists will perceive a need 
for fewer legal inhibitions, and interna- 
tionalists will generally demand greater 
restraints on national power. Interest- 
ingly enough, upon occasion the con- 
verse will also be true. Situations have 
arisen, and will continue to arise, where 
considerations of humanity will lead 
many to demand forcible and even 
unilateral intervention in the affairs of a 
state, while national self-interest will 
perceive no necessity for action and 
hence employ the argument that to 
intervene would be unjustifiable. 

It is this diversity of perception both 
in general and in specific situational 
hypotheses that makes any attempt to 
prescribe rules of behavior hazardous at 
best. Is it right or moral or just that the 
repression in East Pakistan or the geno- 
cide in Biafra should be permitted to 
continue simply because it is an internal 
affair and the United Nations is power- 
less to act? Is it reasonable that a state 
should stand by and turn the other 
cheek to provocateurs bent on diluting 
its national security or threatening its 
national interests as in the Dominican 



1 58 



Republic 9 Or, for that matter, Hungary 
and Czechoslovakia? 

The provisions of the U.N. Charter 
would seem to answer with a resounding 
"yes," if the alternative is the use of 
armed force, and it is doubtful whether 
even the more liberal criteria which have 
been enunciated in this essay would 
admit to resort to force under these 
circumstances. By way of conclusion, it 
might be useful therefore to reflect for a 
moment on why this must be so. 

Particularly for the powerful nations 
of the world, the use of force, un- 
restrained by law or regulation, can 
become addictive as a method of 
settling disputes. It is simpler and much 
quicker than the frequently tortuous 
routes of negotiation and arbitration, 
and in the short run, it is more produc- 
tive. For the£e reasons the use of force, 
while initially resorted to for only the 
most legitimate of reasons, can rather 
quickly become the primary option for 
the resolution of any difficulty, whether 
it be a reasonable option or not. The 
resultant disorder, even putting aside 
the current possibility of escalation to 
nuclear catastrophe, does not, it is 
submitted, in the long run confer a net 
benefit on the user of force. The discord 
and animosity created by the aggressive 
behavior cannot help but prejudice a 
state's international relations and long- 
range interests. Restraint must therefore 
be exercised, if only for pragmatic 
reasons. 

Furthermore, restraint must be exer- 
cised in the face of, at least from the 
perspective of the prospective user of 
force, rather severe provocations. Since 
it is impossible to draw lines which will 
clearly separate reasonable and un- 
reasonable resort to force in all situa- 
tions, the law must err on one side or 
the other. Here considerations of 
morality should come into play. Since 
the use of armed force necessarily en- 
tails the possibility of loss of life, it is 
submitted that the rule of law and the 
conduct of nations should clearly sup- 



port the view "when in doubt, don't." 
Stated more precisely, force should be 
resorted to only when it is clearly 
reasonable, and even then the quantum 
should be strictly proportionate to the 
need. 

In a way, it is strange that nations 
have been so resistant to this conceptu- 
alization. Nations are, after all, made up 
of individuals, and these individuals 
have extensive domestic conditioning in 
a rule of law which, by and large, 
imposes severe limitations on individual 
resort to force. True, there are well- 
known and enforceable sanctions for 
domestic violations, but it is clearly 
evident that the majority of the people 
obey the law out of a conviction that it 
represents an appropriate course of con- 
duct rather than from fear of retribu- 
tion. And yet when action is translated 
to the international scene, this condi- 
tioning has tended to evaporate in favor 
of the notion of sovereign independence 
knowing no law other than national 
interest. 

Merely stating this paradox, however, 
suggests a solution. It is submitted that 
the bulwark of domestic adherence to 
the rule of law is the sense of com- 
munity that a nation has developed over 
time. From common history and lan- 
guage and experience there has evolved 
a sense of unity which supports accom- 
modation to the needs of others and 
restraint in the expression of individual 
preferences. Conversely, although the 
U.N. Charter reflects a legal posture 
which presupposes the existence of such 
a sense of community among nations, it, 
in fact, does not as yet exist. 

With respect to the use of force, the 
embryonic international sense of com- 
munity only admits of the restraints 
suggested in this essay, and then not 
always. Beyond this, regulation must 
proceed at a measured pace, stride for 
stride with a developing sense of inter- 
national community. Decisionmakers 
can hardly be expected to assume a 
condition of international accom- 



159 



modation which does not exist, but if 
resort to force is ever to be eliminated, 
they must always be actively aware of 
the degree of consensus which has been 
achieved. And as 

progress is made toward more 
effective organization and cen- 
tralization in the world arena, the 
hope that may be held out is that 



the set of policies embodying the 
restraint of coercion and the 
promotion of humanitarianism 
may rise in the balance and that 
the scope of permissible coercion 
may gradually be attentuated and 
more exacting standards of 
humanity formulated and 
applied. 119 



FOOTNOTES 

1. The Hague and Geneva Conventions governing land warfare are illustrative: Hague 
Convention No. IV of 1907 Respecting the Laws and Customs of War on Land and the annex 
thereto; Hague Convention No. V of 1907 Respecting the Rights and Duties of Neutral Powers 
and Persons in Case of War on Land; the Geneva Conventions of 1949 concerning the 
amelioration of the condition of the sick and wounded, the treatment of prisoners of war, and 
the protection of civilian persons in time of war. Copies of these documents are contained in U.S. 
Dept. of the Army, Treaties Governing Land Warfare Pamphlet no. 21-1 (Washington: U.S. Govt. 
Print. Off., 1956). 

2. See Richard A. Falk, "The Beirut Raid and the International Law of Retaliation," 
American Journal of International Law, July 1969, p. 430. 

3. The problem of defining aggression has been a continuing one for the United Nations 
since its inception; to date no success has been achieved. For an extended discussion of the 
subject see generally, Julius Stone, Aggression and World Order (Berkeley: University of 
California Press, 1958). See also, Myres S. McDougal and Florentino P. Feliciano, Law and 
Minimum World Public Order (New Haven: Yale University Press, 1967), p. 61 et seq. 

4. Both Israel and the Arab States have attempted to justify their resorts to armed force 
on the basis of art. 51 of the U.N. Charter which deals with permissible self-defense. For an 
extensive discussion of these efforts see Derek Bowett, "Reprisals Involving Recourse to Armed 
Force," American Journal of International Law, January 1972, p. 1. 

5. A classic example of this can be found in the argumentation with respect to the 
competence of regional organizations to use force without the prior authorization of the Security 
Council. It has been contended that art. 53 of the charter prohibits enforcement action without 
Security Council authorization but not preventive action. For an excellent discussion of the 
argumentation, including illustrative examples, see William O. Miller, "Collective Intervention and 
the Law of the Charter," Unpublished Thesis, U.S. Naval War College, Newport, R.I.: 1969, p. 31 
et seq. 

6. See Bowett. 

7. The only decision of the International Court of Justice to date on the issue of the 
legitimate use of forcible self help is the Corfu Channel case, The Hague, International Court of 
Justice, Reports of Judgments, Advisory Opinions and Orders (Leyden: Sijlhoff, 1949), p. 4. 

8. See Stanley Hoffman, "International Law and the Control of Force," Karl W. Deutsch 
and Stanley Hoffman, eds., The Relevance of International Law (Cambridge, Mass.: Schenkman, 
1968), p. 35. 

9. In this connection, former Secretary of State Dean Acheson, himself a lawyer, made 
the following remarks in discussing the Cuban quarantine: 

I must conclude that the propriety of the Cuban quarantine is not a legal issue. The power, 

position and prestige of the United States had been challenged by another state; and law 

simply does not deal with such questions of ultimate power— power that comes close to 

the sources of sovereignty. ... No law can destroy the state creating the law. The survival 

of states is not a matter of law. 

Remarks by the Honorable Dean Acheson, American Society of International Law, Proceedings 

of the American Society of International Law at Its Fifty-Seventh Annual Meeting (Washington: 

1963), p. 14. 

10. Hoffman, p. 44. 

11. See McDougal and Feliciano; Richard A. Falk, "The Legal Control of Force in the 
International Community," Saul H. Mendlovitz, ed., Legal and Political Problems of World Order 
(New York: Fund for Education Concerning World Peace Through World Law, 1962), p. 143. 



160 

12. John Norton Moore makes the point that "Efforts to overuse international law, 
whether by way of support or criticism of rational action, serve only to obscure the vital role that 
an Internationa] legal perspective should play." John N. Moore, "Legal Dimensions of the 
Decision to Intercede in Cambodia," American Journal of International Law, January 1971, p. 
38. 

13. Falk, "Legal Control of Force," p. L43. 

14. This treaty provided for the total discontinuance of reprisal seizures on land and in 
seaports, confined the practice to the open seas, and called for the payment of a fine in the event 
of unlawful seizures. See, Coleman Phillipson, The International Law and Custom of Ancient 
Greece and Rome (London: Macmillan, 191 1), v. II, p. 70, 71. 

15. Evelyn S. Colbert, Retaliation in International Law (New York: King's Crown Press, 
1948), p. 11. 

16. Phillipson, v. II, p. 364. 

17. J.L. Brierly, The Law of Nations, 6th ed. (New York and Oxford: Oxford University 
Press, 1962), p. 398. In categorizing measures of self-help, "retorsion" is frequently included as a 
fourth category. This is a measure, however, which involves legal action by states and does not 
generally involve the use of armed force. Since the present essay is concerned with the use of 
armed force which is not legal per se, a discussion of retorsion has not been included. 

18. This confusion is epitomized by Westlake who, after remarking that the right of 
self-preservation is merely that of self-defense went on to state: 

A State may defend itself, by preventive means if in its conscientious judgment necessary, 

against attack by another state, threat of attack, or preparations or other conduct from 

which an intention to attack may reasonably be apprehended. ... In attack we include all 

violations of the legal rights of itself or of its subjects, whether by the offending state or 

by its subjects without due repression by it, or ample compensation when the nature of 

the case admits compensation. 

John Westlake, International Law, 1st ed. (Cambridge: University Press, 1904), v. I, p. 299; see 

also William E. Hall, A Treatise on International Law, 8th ed. (Oxford: Clarendon Press, 1924), 

p. 322. 

19. Brierly, p. 405. 

20. See Ian Brownlie, International Law and the Use of Force by States (Oxford, 
Clarendon Press, 1963), p. 231 et seq. 

21. This matter was not resolved judicially but precipitated diplomatic correspondence in 
the course of which Webster formulated his definition in a letter of 24 April 1841 to the British 
Ambassador in Washington, Fox, later incorporated in a note to Lord Ashburton of 27 July 
1842. Cited in Robert Y. Jennings, "The Caroline and-McLeod Cases," American Journal of 
International Law, January 1938, p. 89. 

22. Jennings, p. 89. 

23. For a critique of the Caroline test, see Robert W. Tucker, "Legal Restraints on 
Coercion," The United States in a Disarmed World (Baltimore: Johns Hopkins Press, 1966), p. 
148, n. 46. 

24. While it is true that forcible self-help is still not endorsed, domestic society in the face 
of the recent efforts of minority groups and the youth movement may be coming to tolerate a 
greater degree of forcible self-help than ever before. 

25. Colbert, p. 15. 

26. Ibid. 

27. Ibid., p. 27. 

28. Ibid., p. 54. 

29. Brierly, p. 399. Cf. Lassa F.L. Oppenheim, International Law, 7th ed., H. Lauterpacht, 
ed. (London: Longmans, Green, 1952), v. II, p. 132 et seq. 

30. 8 Recueil des Decisions des Tribunaux Arbitraux Mixtes, p. 409, 422-425. 

31. Ibid. 

32. Oppenheim, p. 141, n. 1 ; see also Brownlie, p. 220. 

33. Brierly, p. 403. 

34. Ibid. 

35. Humanitarian interventions by European powers occurred several times in the Turkish 
Empire during the 19th century. See Brierly, p. 403. 

36. Ibid., p. 412. 

37. League of Nations, League of Nations Official Journal 1 924, p. 524. 

38. The Second Hague Convention of 1907 prohibited the employment of force for the 
recovery of contract debts. But this prohibition was itself limited. It did not apply when the 
debtor state refused or neglected to reply to an offer of arbitration or after accepting the offer 



161 

rendered settlement of the compromis impossible or, after the arbitration, failed to submit to the 
award. 

39. See Brierly, p. 408. 

40. The concept that the unilateral use of force should be foresworn also became 
embodied in the Pact of Paris of 1928— the Briand-Kellogg Pact, signed by a great many of the 
members of the international community. This pact did not perish with the League but remains 
in effect today, being fully consistent with the provisions of the U.N. Charter. War as a solution 
for international controversies and as an instrument of national policy was condemned. Peaceful 
settlement of all disputes was required. Recourse to war in self-defense, however, was not 
forbidden. On 20 June 1928 Kellogg stated, as the position of the United States, that "... the 
right of self-defense is inherent in every sovereign state and implicit in every treaty." U.S. Dept. 
of State, Foreign Relations of the United States, 1928 (Washington: U.S. Govt. Print. Off., 
1942), v. I, p. 91. 

41. United Nations, Yearbook of the United Nations 1968 (New York: Office of Public 
Information, United Nations), v. XXII, app. II. 

42. Ibid. 

43. Ibid. 

44. See Oppenheim, p. 152 et seq. 

45. United Nations, Yearbook 1 968. 

46. Ibid. 

47. Ibid., art. 52, para. 1. 

48. Ibid., art. 53, para. 1. 

49. See Brownlie, p. 431 et seq. 

50. United Nations, General Assembly, Official Records, Resolution no. 2625 (XXV), 25th 
sess., supp. 28, A8028 (New York: 1971), p. 121 et seq. 

51. Ibid., p. 122. 

52. Ibid. 

53. Ibid., p. 123. 

54. See Brierly, p. 1. 

55. See Stone, p. 96. 

56. See McDougal and Feliciano, p. 5. Their entire thesis argues that the U.N. Charter does 
not tell us what is lawful in any given situation. This is arrived at by measuring actions against 
certain realistic judgmental criteria. In this connection see particularly p. 63 of their work. 

57. See Brownlie, p. 280. 

58. United Nations, "Inter-American Treaty of Reciprocal Assistance and Final Act of the 
Inter-American Conference for the Maintenance of Continental Peace and Security," Treaty 
Series (New York: 1948), v. XXI, no. 324, p. 77. 

59. United Nations, "Treaty of Peace with Japan," Treaty Series (New York: 1952), v. 
CXXXVI, no. 1832, art. 5, p. 46. 

60. United Nations, General Assembly, Official Records, Report of the International Law 
Commission, 4th sess. supp. no. 10 (A/925) (Lake Success, N.Y.: 1949). See also, United 
Nations, "Treaty of Alliance, United Kingdom and Jordan," Treaty Series (New York: 1947), v. 
VI, no. 74, art. 5, p. 145; "Treaty of Alliance and Mutual Assistance, United Kingdom and 
France," Tn\ity Series (New York: 1947), v. IX, no. 132, art. 2, p. 190. 

61. See Oppenheim, v. II, p. 154; Dr. D. Nincic in Georg Schwarzcnbcrger, Report on 
Some Aspects of the Principle of Self-Defense in the Chai'tcr of the United Nations and the 
Topics Covered by the Dubrovnik Resolution (New York: International Law Association, New 
York University Conference (1958) Committee on the Charter of the United Nations: 1958), p. 
68. 

62. United Nations, Security Council, Official Records 21st yr., 1321st mtg., 16 November 
1966, S/PV 1321 (New York: 1966), p. 17. 

63. United Nations, Security Council, Official Records, 24th yr., 1466th mtg., 27 March 
1969, S/PV 1466 (New York: 1969), p. 48; United Nations, Security Council, Official Records, 
24th yr., 1468th mtg., 1 April 1969, S/PV 1468 (New York: 1969), p. 21. 

64. See "Mrs. Gandhi Said to Set Terms for Visits by Observer Teams," The New York 
Times, 17 November 1971, p. 16:7; Sidney H. Schanberg, "India and Pakistan: Short of War," 
The New York Times, 18 November 1971, p. 2:3; "Mrs. Gandhi Rejects Thant Proposal," The 
New York Times, 19 November 1971, p. 16:6; "No Reaction So Far," The New York Times, 30 
November 1971, p. 3:5. 

65. See Bowett, p. 4 et seq.; see also Brierly, p. 431. 

66. Bowett, p. 4 et seq. 



162 

07. United Nations, Security Council, Offn i.i/ Records, Supplement for April, May and 
June 1964, 1 1 1th intc] , 9 April 1964, S/5650 (New York: 1965), p. 9. 

63. Set Brierly, p. 420. This view is also shared by a number of other publicists including 
Stone, Bowett, Waldock, and McDougal. 

69. Brierly, p. 418. 

70. At least one adherent of the restrictive view of self-defense has attempted to 
accommodate this position to the potential of nuclear weapons. Dr. M. Nagendra Singh would 
not require that self-defense wait on a physical violation of the territory of a state. Armed attack 
in his view includes those last proximate acts necessary to initiate an attack, e.g., aircraft being 
launched or submarines leaving their territorial waters. For McDougal's critical commentary on 
this accommodation, see McDougal and Feliciano, p. 239. 

71. Ibid., p. 238 et seq. 

72. Bowett, p. 1, and authorities cited therein. 

73. While initial U.S. statements indicated that the air attacks following the incident were 
retaliatory in nature, in the U.N. the U.S. Representative argued that in the face of military 
aggression his Government had decided, in self-defense, to take "positive but limited and relevant 
measures to secure its naval units against further aggression." United Nations, Security Council, 
Official Records, 19th yr., 1 140th mtg., 5 August 1964, S/PV 1 140 (New York: 1964), p. 2. This 
view represents a broad view of self-defense commonly called the cumuiati'on of events doctrine, 
and there is little difference between it and precharter reprisals. 

74. The Hague, International Court of Justice, p. 4. 

75. See Brierly, p. 421 et seq,; see also Claud H.M. Waldock, "The Regulation of the Use of 
Force by Individual States in International Law," The Hague, Academy of International Law, 
Recueii des Cours, 1952 (Paris: Librairie du Recueil Sirey, 1953), v. LXXXI, p. 501. 

76. See Brierly, p. 425 et seq. 

77. Some publicists would also include humanitarian intervention as a legitimate basis for 
the use of force. The most eminent of these has been the editor of the recent editions of 
Oppenheim, Sir Hersch Lauterpacht. The eighth edition of Oppenheim states that intervention is 
legally permissible "when a state renders itself guilty of cruelties against and persecution of its 
nationals in such a way as to deny their fundamental human rights and to shock the conscience 
of mankind." Lassa F.L. Oppenheim, International Law, 8th ed., H. Lauterpacht, ed. (London: 
Longmans, Green, 1955), v. I, p. 312-13. There is still some question, however, as to whether this 
type of interference in the internal affairs of another state is acceptable and therefore in this 
reasonably conservative estimate of the measures of forcible self-help which are legitimate, 
humanitarian intervention has not been included. It is suggested that intervention of this type 
may better be left to the United Nations rather than individual states. 

78. See statement of Secretary of State Dean Rusk as quoted in Jay Mallin, Caribbean 
Crisis (Garden City, N.Y.: Doubleday, 1965), p. 58. 

79. White House Press Release, 28 April 1965, Documents on American Foreign Relations, 
1965 (New York: Harper, 1966), p. 234. 

80. See Miller, p. 54. 

81. United Nations, General Assembly, Resolution no. 2625, p. 123. 

S2. Even Brownlie, who adopts a very strict view of what force can legitimately be applied 
in modern law concedes that 

. . . the protection of nationals presents particular difficulties and ... a government faced 
with a deliberate massacre of a considerable number of nationals in a foreign state would 
have cogent reasons of humanity for acting . . . The possible risks of denying the legality 
of action in, a case of such urgency . . . must be weighed against the more calculable 
dangers of providing legal pretexts for the commission of breaches of the peace in pursuit 
of national rather than humanitarian interests. Brownlie, p. 301. 

83. Brierly, p. 431. 

84. Ibid. ' 

85. The United States has always taken the position and amply demonstrated that its 
intervention in Vietnam only occurred after it had been clearly determined that the subversion of 
South Vietnam was being directed from North Vietnam. 

86. While the argument was never made, it might be contended with some justification that 
India's intervention in Pakistan falls in the category of a special case; that the flow of Bengali 
refugees into India was similar to the negligent use by Pakistan of its natural resources. It is 
submitted, however, that this argument probably stretches the limited "special cases of 
necessity" beyond acceptable limits. 

87. Brownlie, p. 376. 

88. See generally Bowett; see also Miller. 



163 

89. See Falk, "Beirut Raid," p. 441; cf. Yehuda Z. Blum, "The Beirut Raid and the 
International Double Standard. A Reply to Professor Richard A. Falk," American Journal of 
International Law, January 1970, p. 73. 

90. Cf. N.G. Onuf, "The Current Legal Status of Reprisals," Unpublished Manuscript 
submitted to the American Society of International Law, Panel on Reprisals and Retaliation in 
International Law: 1971, p. 19. 

91. Ibid. 

92. No attack against the United States was imminent, hence self-defense under the 
Caroline case test was not a legitimate basis for the quarantine. Likewise, no acknowledged right 
was being denied to establish a "Corfu Channel" type reprisal action. Finally, neither protection 
of nationals, requested intervention against an external threat, nor a "special case of necessity" 
was present so as to justify the intervention. Professor Carl Q. Christol has stated that the Cuban 
action constructed a new rule of international law. Carl Q. Christol and Charles R. Davis, 
"Maritime Quarantine: the Naval Interdiction of Offensive Weapons and Associated Material to 
Cuba, 1962," American Journal of International Law July 1963, p. 525. 

93. See Quincy Wright, "The Cuban Quarantine," American Journal of International Law, 
July 1963, p. 546, and authorities cited therein. 

94. Russia and her satellites condemned the action as piracy and contended that the 
United States was engaged in unprecedented aggressive action. See Christol and Davis, p. 528. 

95. Although a resolution condemning the quarantine was presented to the Security 
Council by the Soviet Union, the Council by general consent refrained from acting upon it. It has 
even been argued that the failure to condemn and the Council's encouragement of negotiations to 
resolve the matter indicates ex post facto authorization by the Security Council. See Leonard C. 
Meeker, "Defensive Quarantine and the Law," American Journal of International Law, July 
1968, p. 515. 

96. See Christol and Davis, p. 526. 

97. Andrei Gromyko personally gave these assurances to President Kennedy, although the 
President knew at the time that offensive missiles were being installed. Some weeks previously 
Ambassador Dobrynin had assured Robert Kennedy that there would be no ground-to-ground 
missiles or offensive weapons placed in Cuba. See Robert F. Kennedy, Thirteen Days, (New 
York: Norton, 1969), p. 25, 41. 

98. Ibid., p. 49. 

99. See Wright, p. 554; see also Kennedy, p. 48. 

100. See Christol and Davis, p. 527. 

101. Ibid., p. 528; see also Kennedy, p. 51. 

102. "U.S. Request for Meeting of Security Council," The Department of State Bulletin, 12 
November 1962, p. 724. 

103. Theodore C. Sorenson, Kennedy (New York: Harper & Row, 1965), p. 706; see also 
Arthur M. Schlesinger, Jr., A Thousand Days (Boston: Houghton Mifflin, 1965), p. 815. 

104. Kennedy, p. 52. 

105. See Department of the Navy, Oceanographic Office, Notice to Mariners, No. 47 
(Washington: 1962), p. 2547-48; see also Jack Raymond, "Navy Tells Ships of Danger Areas," 
The New York Times, 25 October 1962, p. 20:6. 

106. In this connection the United States received support from African countries that h.id 
been considered antagonistic. Guinea, Senegal, and Algeria refused to permit Soviet aircraft to 
land or refuel. Kennedy, p. 122; see also Schlesinger, p. 815. 

107. Kennedy, p. 61. 

108. Ibid., p. 82. 

109. Ibid., p. 124. 

110. See the Falk modified criteria as summarized and reordered in previous, discussion, first 
item. 

111. Ibid., second item. 

112. Ibid., third and fourth items. 

113. Ibid., fifth and sixth items. 

114. Kennedy, p. 80. 

115. See Falk's modified criteria, seventh item. 

116. Kennedy, p. 103. 

117. In addition to other countries, almost all the Members of the Security Council 
condemned as illegal the action of the Soviet Union. Sec "Situation in Czechoslovakia: Security 
Council Considers Item," UN Monthly Chronicle, August-September 1968, p. 34 et seq. 

118. Eric Pace, "U.N. Vote Follows Pleas for Action," The New York Times, 8 December 
1971, p. 1:5. 

119. McDougal and Feliciano, p. 59. 



164 



BELLIGERENCY AND LIMITED WAR 



William 0. Miller 



\\ hen 1 was asked if I would give this 
presentation, I wondered if the title, 
"Belligerency and Limited War," was 
cast in technieal legal terms—that is, 
does it mean helligerency in its generally 
accepted legal sense-and does it mean 
"war" in its generally accepted legal 
sensc--or does it mean a situation where 
there is no technical slate of war hut, 
nevertheless, where there is a large-scale 
armed conflict raging. 

This is an extremely important con- 
sideration, for the technical existence of 
a state of war, in the traditional law, has 
been a prerequisite for the legitimacy, in 
a legal sense, of certain types of actions. 
For example, the term "blockade" is a 
term unknown in the law except as it 
connotes a belligerent blockade in time 
of war. 

This has always seemed to me to be a 
somewhat less than adequate maimer of 
viewing tin; problem. The real problem, 
it seems to me, is the need to determine 
what degree of force, applied in what 
manner, against what targets, may states 
reasonably expect acceptance by the 
majority of other states. 

Bui until just recently litis entire 
problem has been approached by almost 
all ol our international law publicists— 
aml, indeed," by the stales ihemselves- 
from the two polar extremes-- there was 
a "law of peace" and there was a "law 
of war." Almost all of the major works 
in the international law field are divided 
into two parts-one on war, the other on 
peace. 



What I think we should ask ourselves 
in any study of this topic is how much 
real utility does the dichotomy of a law 
of war and law of peace provide to us, 
and I think we will come up with the 
answer thai in a contemporary situation 
it provides little utility at all. 

Let's lake a look just lor a minute at 
the situation in Vietnam. War or peace? 
Or does il really matter from a legal 
standpoint? 

As a factual matter, what we have 
there is a conflict of major proportions. 
But, as we are all aware, there is no 
technical stale of war in existence. You 
have read the memorandum from the 
Defense Department to the Senate 
Armed Services Committee in which it 
was stated that the present situation 
imposes no obstacles on us in the 
pursuance of our objectives in Vietnam, 
and I have no doubt that ibis is true. 
But what if our objectives should broad- 
en and it was considered necessary to 
restrict the inflow of goods into North 
Vietnam? I know you have often heard 
il said that we cannot blockade Hai- 
phong because il is not legal, because 
blockade is legal only in time of war. I 
have also heard it said that the present 
coastal surveillance measures by the 
South Vietnamese cannot extend be- 
yond 12 miles from their coast-beyond 
their contiguous zone—because it is il- 
legal, except in unusual circumstances in 
time of peace, to exercise control over 
the ships of another slate beyond thai 
limit. The effect of these statements is 



165 



simply that the Republic of Vietnam/ 
United States cannot insist on bellig- 
erent rights because a state of war does 
not exist. 

The converse may have been .true in 
the United Arab Republic's blockade of 
the Israeli port of Klath. Was this 
"blockade" legal or illegal? It depends 
on what law you apply--the law of war 
or the law of peace. Clearly, I think that 
if the U.A.R. possessed belligerent 
righls-that is if a state of war existed 
between Israel and the U.A.R. --their 
actions were legal. It would be to the 
contrary, however, if they did not 
possess belligerent rights. The basic posi- 
tion of the United Slates on this point 
was that belligerent rights did not exist 
because of a 1953 Security Council 
Resolution which stated the prior armis- 
tice had ended the war and that neither 
side could legitimately claim belligerent 
rights. Hence, it was said, the 1958 
Geneva Convention providing for free 
passage through international straits was 
the controlling rule. The Egyptians, on 
the oilier hand, based their position 
essentially on the fact that there was, 
indeed, a state of war existing, that it 
had merely been suspended for a time 
by the armistice, and that they con- 
sidered it necessary for their security to 
prevent influx of strategic goods. Also, 
they very pointedly noted that the 1958 
Geneva Conventions were intended lo 
regulate peacetime, and not wartime, 
relations. 

The point here is that there are such 
things as belligerent rights, rights which 
exist only in a technical state of war. 
Many today contend that this slate of 
the law does not satisfactorily treat the 
contemporary situation where we don't 
really have "war" in its traditional and 
technical sense, and where we don't 
really have "peace, 11 but where we must 
deal with something in between. I have 
also heard it said that this war/peace 
dichotomy does not really or effectively 
prescribe a norm of conduct for a stale. 
If one's actions are illegal when placed 



in the "peace 11 cubbyhole, legality can 
be bestowed on them by designating the 
situation in which they occur as "war. 11 

While the thrust of this statement 
may be true lo some degree, it is, of 
course, by no means true that the 
designation of a conflict as "war 11 is a 
step to be taken merely to legalize some 
act; for when one party to a conflict 
considers whether it should insist on 
belligerent rights, it must also consider a 
host of other factors, not the least of 
which are the treaty relations of its 
opponent which the existence of a state 
of war may bring into play, and most 
important by that the exercise of bellig- 
erent rights will impose reciprocal re- 
strictions upon neutrals, restrictions 
which those neutrals may be loath to 
accept. Hence, the importance, power, 
and inclinations of so-called neutral 
powers and the effect that belligerent 
restrictions on their normal rights will 
have are extremely important considera- 
tions. 

This can be illustrated by the tradi- 
tional law of war as it relates to the 
belligerent right to embargo sea com- 
merce to and from its enemy— to stop 
the How of goods, both inward and 
outward, which enhances the enemy's 
warmaking effort. 

The particular method for accom- 
plishing this purpose, which I want to 
discuss, is the 1 traditional or t lie bellig- 
erent blockade. 

Blockade was originally conceived 
and executed as the maritime counter- 
part of siege. It was the total prohibi- 
tion of maritime communication, in- 
ward or outward, with a designated 
portion of the enemy's coastline. Its 
focus was, and is, on ships, unlike the 
law of contraband where the focus is on 
cargo. Blockade is defined as the bellig- 
erent right to prevent vessels of all states 
from entering or leaving specified ports 
or coastal areas which are under the 
sovereignty, occupation, or control of 
the enemy. This could include the 
whole of the enemy coastline, as indeed 



166 



it did iluring the Vmerican Civil War 
when the Union forces maintained o 
blockade of t h »* entire Confederate 
coast . 

Itlockade, by its nature, involves not 
onl) interference with vessels (lying the 
enemy s flag, but also with vessels flying 
Uie (lag of neutral stales. One of the 
most fiuidamental considerations in 
blockade is that it applies to belligerent 
and neutral vessels alike; hence, one of 
the restrictions of neutrals which I 
mentioned a moment ago, restrictions 
on a >lales otherwise legally un- 
restricted right to trade with whomso- 
ever it wishes. Neutral slates, therefore, 
traditionally insisted that the enforce- 
ment of a blockade must be in ac- 
cordance with strict and clear rules, the 
first of which being that the blockade 
must be enforced impartially against 
ships of all states. If ships of some states 
are permitted through and those of 
others are not, then a blockade in its 
legal sense may not be said to exist. The 
United States used this point as basis for 
its strenuous objections in the British 
blockade of (Germany in World War 1 
which significantly interfered with U.S. 
trade to German ports but did not 
restrict Scandinavian trade to these 
same ports. 

The blockading state must com- 
mence the blockade with notification to 
all nations as to when the operation is 
to begin and the area to be affected. In 
this latter regard the blockade must not 
be so designed as to bar access to, or 
departure from, neutral ports or coast- 
lines. This was intended to ensure that 
the blockade does not interfere with 
stricllv neutral trade. 

\<-xt, the blockade must be effective. 
That is, it must be maintained by 
sufficient force to make blockade run- 
ning hazardous, and it must involve a 
liijjli degree of risk. The blockade of the 
Confederate coast, which I mentioned, 
was contested on this ground by some 
neutral stales whose vessels were appre- 
hended, 'lie blockaded coastline was 



about .'1,000 miles in length, am! there 
were only about 415 Union ships patrol- 
ling the area. As a consequence, many 
blockade runners managed lo gel 
through. Nevertheless, the U.S. Supreme 
Court had little difficulty in deter- 
mining that the blockade was effective, 
so as to make legal the condemnation in 
prize of the ships which were captured. 

Breach of a blockade' occurs when a 
vessel, having knowledge of the block- 
ade, passes through or attempts to pass 
through it en route to or from the 
blockaded area. 

The penalty for breach, or attempted 
breach, is the confiscation of both the 
ship and its cargo, whether contraband 
or not. 

I emphasize here that the liability of 
the blockade runner is to capture, and 
condemnation is the prize. The block- 
ade runner could not be destroyed 
unless she resisted or fled, and unless 
destruction was necessary. 

What I have just described is the 
traditional, or close-in, blockade. This 
does not mean that the blockade force 
must be disposed close-in to the enemy 
coastline or port, but it docs mean that 
the blockading force must be so de- 
ployed that neutral vessels bound for 
neutral ports will not have to pass 
through the blockade line, and thus 
subject themselves to being boarded and 
searched, and possibly seized for a 
blockade breach. This highlights one of 
the basic problems of the traditional 
blockade in modern times-the deploy- 
ment of the blockading force close-in to 
the blockaded area may be impossible 
from an operational viewpoint, and geo- 
graphical considerations make it impos- 
sible, in most regions, to blockade fur- 
ther at sea and not interfere with 
innocent neutral shipping or bar access 
to neutral ports. 

Accordingly, we have seen in modern 
warfare the almost total disuse of the 
traditional blockade. While there were 
some minor close-in blockades during 
World War I, none were of any real 



167 



significance; and World War 11 reported 
only one incident of its nsc-the Soviet 
blockade of the Finnish coast in 1940. 

There were, of course, blockades of a 
type during both World War 1 and World 
War II, luil these were not blockades in 
the traditional serse, and they were 
never sought to be justified as such. 
They were frequently referred to as 
long-distance blockades since they in- 
volved closing and patrolling large areas 
of the high seas, hundreds of miles from 
the enemy's coastline. In both wars the 
British blockades of Germany consisted 
principally of controlling the northern 
and southern approaches of the North 
Sea, thereby restricting access to some 
neutral ports as well as German ports. 
And the Germans, as you know, by the 
use of war zones blockaded the whole 
of the British Isles. Both sides employed 
new weapons for the enforcement of 
these long-distance blockades. Where in 
prior wars the surface man-of-war was 
the weapon utilized for commerce con- 
trol, belligerents now supplemented the 
surface fleets with the submarine, the 
aircraft, and the mine. War zones were 
established by all belligerents through 
which passage was prohibited or re- 
stricted and made extremely dangerous 
by a combination of these weapons. 
Thus, large areas of the seas were mined 
by the British, Germans, and later by 
the United States; and neutral shipping 
was cautioned to stay out and were told 
that if they desired to pass through the 
area on an innocent voyage, to funnel 
through certain designated areas where 
inspection of their cargo could be facili- 
tated. 

As another method of control, the 
British established a system of issuing 
"navicerts" to neutral vessels transiting 
the blockaded area en route to neutral 
ports. Under this system a vessel, legiti- 
mately engaged in neutral trade, could 
obtain a navicert at its port of last 
loading which attested to the innocence 
of its cargo and destination. Upon 
reaching I he blockaded area, the neutral 



vessel would be allowed to pass un- 
hindered. Similarly, a neutral ship out- 
bound from a neutral port from within 
the blockaded area could obtain a navi- 
cert attesting to the nonenemy origin of 
its cargo. This system had the effect of 
greatly facilitating the enforcement of 
the British blockade and, at the same 
time, minimizing delays in such neutral 
trade as the British were willing to 
permit. 

Let me just summarize the three 
principal departures from the traditional 
rules which characterized the blockades 
of both sides in both World War I and 
World War II: 

1. Establishment of war zones in 
large areas of the high seas, restricting 
access to neutral ports and making 
transit through these zones dangerous 
by the use of mines, submarines, and 
aircraft: weapons systems which were 
unable to exercise the traditional 
method of blockade control-capture of 
the blockade runner. 

2. Therefore, subjecting ships at- 
tempting to pass to destruction rather 
than capture and condemnation in 
prize, as the penalty for breach or 
attempted breach of the blockade; and 

3. Almost total control of, instead of 
minimal interference with, bona fide 
neutral commerce. 

I want to point out again that these 
actions were never supported, in a legal 
sense, under the traditional law of 
blockade. They were justified, rather, 
under the law of reprisals as actions 
which, although illegal, are rendered 
legal by virtue of a prior unlawful act ol 
the enemy. Whatever the legal justifica- 
tion, the real significance of this action 
lies in the fact that these departures 
from the old rules were made not just 
on occasions but persistently through- 
out the major wars by all participants. 
Thus, I would say the old rules, by this 
course of conduct, were shown to have 
lost their validity as law, if we mean by 
law a standard of eonduct to which we 
can expect general community adher- 



168 



(Mice Man) contend, however, that 
these departures from the old rules must 
be viewed strictly in their reprisal con- 
text .mil thai as »u< li I hey merely reflecl 
llir operation ol sanctions for the illegal 
conduct oi llic opposing belligerent and 
that hence iIh*n can obtain no color ol 
legality except as such. 

Professor Lauterpacht, however, 
states what I think is the better view in 
this manner: 

Measures regularly and uniformly 
repeated in successive wars in the form 
of reprisals and aiming at the economic 
isolation of the opposing belligerent, 

must be regarded as a development of 
the latent principle of blockade, name- 
ly that the belligerent who possesses 
effective command of the sea is en- 
titled to deprive his opponent thereof 
for the purpose either of navigation by 
his own vessels or of conveying on 
neutral vessels such goods as are des- 
tined to or originate from him. 

In other words, new conditions have 
demanded new laws, and they should 
have them. This was seen at the outset 
l»\ (J rand Admiral Tirpitz, who has been 
referred to as the lather of German 
submarine warfare. He said this in his 
memoirs: 

Had we dealt with the submarine 
campaign cooly and consistently, we 
should have prepared the ground for 
the view that the campaign was not 
merely justifiable as a reprisal against 
the starvation blockade (which, unfor- 
tunately, was the only argument put 
forward on our behalf), but that it was 
clearly and irrefutably justified by the 
maritime law created by the English 
themselves at the beginning of the war. 
The new weapon could not be bound 
by the rules made in the old sailing 
days of a century ago, but had a right 
to a new law. Docs anyone seriously 
believe that in any future war a people 
fighting for its life will not use the 
submarine as we have used it in this 
war, even if the rules of international 
law forbid them to do so. 

The point I want to make here, and, 
indeed, in this entire presentation, is 
that with the broadening scope of a 
belligerent's objectives— in both World 



Wars, the total subjugation of the 
cnemy-and with the development of 

new weapons through which these ob- 
jectives can be sought, a new look is 
required at the legal framework by 
which the world community seeks to 
regulate the conflict. Given, then, a 
legitimate military objective-and cer- 
tainly, in modern warlare, commerce 
which strengthens the enemy's war ef- 
fort can be a legitimate military objec- 
tive— we must expect those measures to 
be used which can effectively restrict 
that commerce and which the bellig- 
erent has at hand. Any legal system 
which does not adequately deal with the 
practicalities of the situation will be just 
as ineffective as the old blockade rules 
were in the two preceding major wars. 
These rules on blockade were simply 
not sufficiently realistic as to compel 
general adherence in either of these 
giant conflicts. So, it seems to me that 
in this co?itext of all-out war, they were 
shown to have lost their status as law. 

Now I do not mean that these 
principles have totally lost their useful- 
ness for, perhaps, we can envision a 
situation where we could expect to see 
general adherence to them. 

A small war, between smaller states, 
where political objectives remain well 
limited and where the geographical 
situation is appropriate may very well 
see an old traditional type blockade. As 
a matter of fact, we saw something akin 
to this in the Egyptian blockade of the 
Israeli port of Elalh. I say "akin' 1 to the 
traditional blockade because the U.A..R. 
emphasis was not on shipping but on 
strategic goods. That is to say, Egypt 
did not bar all shipping through the 
Straits of Tiran, but only barred items 
of strategic goods. She announced that 
all Israeli shipping, of course, would be 
fired upon, but that neutral shipping 
would be required to stop for inspection 
of their cargo and that any attempt by a 
neutral to ship strategic goods to Israel 
would be considered an unfriendly act 
against all Arab states. 



169 



There also was a traditional blockade 
bv the United Stales against the North 
Korean coast during the Korean war 
where there was a favorable geographic 
situation and limited political objec- 
tives. This blockade, according to 
Messrs. Cagle and Manson, was success- 
fully maintained for 3 years. And, yes, 
both Soviet and Chinese Communist 
vessels respected the blockade, although 
both governments denounced it and 
refused to recognize its legality or even 
its existence. 

I would like now to discuss three 
other, but related, situations with you. 

The first is the old 19th century 
concept of pacific blockade--a term 
which one hears bandied about from 
time to time. This action has been 
described as a measure short of war, i.e., 
where the blockading state does not 
wish to resort to war but, nevertheless, 
wishes to resort to some degree of force 
to obtain redress of a claimed wrong by 
the opposing state. Hence, pacific block- 
ades arose as a form of reprisal used in a 
peacetime situation generally by larger 
states against those less powerful. It 
consisted of blockading access to or exit 
from a particular port or ports of the 
target state, of the vessels of that stale. 
Oidy the shipping of the blockaded 
state was affected. Neutral ships, or 
ships of other nations, are permitted to 
come and go as they please. There are 
no recorded instances of this being used 
in this century, and there are no in- 
stances where it was ever used by the 
United States. I mention it here just so 
that you will be able to distinguish it 
from the belligerent type blockade if 
the need arises. 

There are other measures short of 
war which bear some relevance to the 
use of seapower in a limited war situa- 
tion. I refer to the basic right of every 
state to take such actions at sea as are 
reasonable and necessary to protect its 
security interest against the hostile acts 
of other states. The old case of the U.S. 
Hagship Virginias is frequently cited in 



support of this proposition. This ship 
was seized by the Spanish authorities in 
1873 while it was in the process of 
transporting arms to Cuban insurgents. 
The British ship Dcerliound was seized 
by Spanish warships during the Spanish 
Civil War for the same reason. And 
during the Algerian War, French war- 
ships stopped at least two ships-one a 
British and one a Yugoslav, both of 
which were suspected of the same of- 
fense. 

The current Market Time operations 
in Vietnam are also pertinent to our 
discussion. The Republic of Vietnam 
decree announcing this operation stated, 
essentially, that the entry into South 
Vietnam of goods or personnel through 
other than recognized ports is forbidden 
by the South Vietnamese customs and 
immigration regulations and that it was 
intended to enforce these regulations 
strictly. Accordingly, it provided that all 
vessels within the Republic of Vietnam 
contiguous zone were subject to visit 
and search, and arrest where appro- 
priate, for violations of these regula- 
tions. It went a bit further and declared 
that even beyond their contiguous zone, 
ships suspected of being RVN, although 
flying another flag, would be stopped, 
searched, and seized if appropriate. 

South Vietnam has done nothing 
here, of course, that a state cannot 
legally do in time of peace under the 
1958 Geneva Conventions. These are 
strictly police measures designed to en- 
force the domestic laws of the RVN 
seaward throughout their sanitary, 
fiscal, and customs zone, or contiguous 
zone, and on the high seas against ships 
suspected of being their own although 
flying a foreign flag. 

May 1 simply pose this question to 
you? Does the Virginias case, and the 
others I cited a moment ago, suggest a 
rationale for a possible extension of this 
surveillance? 

A final blockade-type situation 
winch compels our attention is the \ l )()2 
quarantine of strategic arms to Cuba. 



170 



This exercise ol force at sea was de- 
signed by the United States an a re- 
spoiiae to t hr Soviet/Cuban missile 
threat and, certainly, as a measure 

which, il was hoped, l*Ollltl resolve I lie 

situation short ol actual conflict. 

I call this i blockade-type situation 
because it was not i blockade in any 
sense ol the word— you will recall that I 

Commenced my remarks with the nota- 
tion that blockade deals with ships, 
solely, and not their cargo. 

There was never any intention in the 
Cuban situation to prevent the ingress 
of Bhips. The entire thrust of the opera- 
tion, of eourse, was on offensive missiles 
and their component parts. Ships were 
Stopped, and those which were not 
transporting the prohibited items were 
permitted to continue their Voyage, and 
a cleared! , or clearance certificate, 
system, modeled after the old navicert 
system was initiated to obviate even this 
inconvenience for ships carrying inno- 
cent cargo. This really hears a close 
resemblance to the prohibition of con- 
traband, also a belligerent right under 
the traditional law of sea warfare. Hear 
in mind here that there never was any 
intention, on anybody's part, that a 
state of war should exist between the 
United States and Cuba, or the United 
Mates and the Soviet Union, although 
what has traditionally been a belligerent 
right was, in essence, exercised. 

This, I think, demonstrates my thesis 
that changing conditions require chang- 
ing rules and that a law of peace and law 
of war dichotomy is inadequate in such 
contemporary situations. 

Clearly, the United States could have 
declared war on Cuba, established a 
blockade, or announced lists of contra- 
band items; although, undoubtedly, 
many would have cried that the declara- 
tion of war. itself, was violative of 
article 2(4) of the U.N. Charter, Rut 
putting this argument aside lor a mo- 
ment, il certainly seems obvious that a 
formal slate of war should not be 
required for a slate to insist on certain 



essential protective rights since such 
would have undoubtedly prejudiced the 
chances lor a peaceful solution of the 

matter. 

Of course, the lawyers have waxed 
long and hard on the legality of the 
quarantine. Some publicists, even some 
V. 1 ^. publicists, have branded il as an 
unlawful exercise of force under article 
2(4) of the Charter. Others, and these 
are substantially in the preponderance, 
have argued for its legality, although not 
always using the same yardstick. The 
official U.S. position is that the action 
was legal as a collective action by the 
American states under articles 6 and 8 
of the Rio Treaty in response to a 
situation endangering the peace of 
America. Others contend that it was a 
legitimate exercise of the right of collec- 
tive self-defense under article 51 of the 
U.N. Charter. 

These latter arguments seem to me to 
be the more realistic ones and, as such, 
to be a much more useful part of the 
continuing development of standards of 
conduct to which we can generally 
expect states to conform. To brand as 
illegal under present law every exercise 
of armed force, as some do, invites 
comments like those of former Secre- 
tary of Slate Dean Acheson to the 
American Society of International Law, 
shortly after the quarantine. 

I must conclude that the propriety 
of the Cuban quarantine is not a legal 
issue. The power, position, and prestige 
of the United States had been chal- 
lenged by another state: and law 
simply docs not deaJ with such ques- 
tions of ultimate power-power that 
comes close to the sources of sover- 
eignty. I cannot believe that there are 
principles of law that say we must 
accept destruction of our way of life. 
One would be surprised if practical 
men, trained in legal history and 
thought, had devised and brought to a 
state of general acceptance, a principle 
condemnatory of an action so essential 
to the continuation of preeminent 
power as thai taken by the United 
States last October. Such a principle 
would be as harmful to the develop- 



171 



mcnt of restraining procedures as it 
would be futile. No law can destroy 
the state creating the law. The survival 
of states is not a matter of law. 

Whether or not one agrees fully with 
these remarks, I do lliink one must 
agree that they do point out clearly thai 
in order for restraining procedures to 
have any hope of effectiveness, they 
must be premised on a realistic appraisal 
of what states can be expected to do in 
particular circumstances. 

Now, what is the relevance of all of 
this to my subject-the legality of the 
use of certain weapons in a limited war 
situation? 

While we do have some rules of 
international law in sea warfare which 
appear definite and certain on their 
face, this is by no means the true 
situation. Most of these rules were 
developed in and for a totally different 
environment than we lace today. While 
there are, and must be, restraints on the 
participants in a conflict, whether or 
not that conflict is characterized as a 
technical state of war, 1 think history 
teaches us that the degree of effective 
restraint will vary in inverse proportion 
to the nature of the objectives for which 
the conflict is being waged; that is, as 
the objectives become more unlimited, 
the fewer restraints we can expect the 
parties to impose upon themselves, and, 
hence, the fewer constraints the world 

community, in the form of law, can 
hope to impose. 

The traditional blockade which we 
have been discussing provides a good 
example of this. When faced with a war 
where the total, organized resources of 
the enemy became a legitimate military 
objective, the old rules which sought to 
separate noncombatants from com- 
batants at sea were not adequate. Nor 
were those which failed to make allow- 



ances for the effect which otherwise 
normal neutral trade would have on the 
enemy's war effort. Thus the old 19th 
century law failed under the strict test 
of military necessity in a modern con- 
text. 

But to get back to my subject, I will 
simply say that in limited war situa- 
tions, where objectives are limited, there 
will be more self-imposed restraints and, 
hence, more constraints in the form of 
law that can hope to be imposed. 

In the Vietnamese situation, for ex- 
ample, our self-imposed restraints are 
such that we make no effort at all to use 
force to interfere with the seaborne 
trade into North Vietnam. 

This situation might very well be 
otherwise, however, if there were to be, 
for example, a massive invasion across 
the DMZ. It could very well be that the 
defense of South Vietnam would re- 
quire interdiction of North Vietnamese 
strategic commerce. This situation did 
develop in Korea. It would not be 
unrealistic, therefore, to expect, given 
the right circumstances, something in 
the nature of a traditional blockade of 
the North Vietnamse coast. 

In seeking to determine the legality 
of a proposed action, one should not 
only look to such rules as are found in 
such publications as The Law of Naval 
Warfare, but he must also study the 
history of these rules, i.e., the situation 
for which they were designed and the 
history of their application. lie must 
also recognize that there are many 
situations which are simply not covered 
in the rule books-and it is here, particu- 
larly, where the practice of stales, if it 
can be determined, will make possible a 
heller and more meaningful appraisal. 
As Professor Morgenlhau slated the 
other day, "We deal not with theory, 
bul with experience." 



t 



172 



BLOCKADE: EVOLUTION AND EXPECTATION 



James F. McNulty 



INTRODUCTION 

The principles of modern interna- 
tional law recognize the doctrine of 
blockade as a legitimate option between 
states in a declared state of war, giving 
them the right to apply naval power to 
stop all seaborne commerce with the 
enemy, including that carried in neutral 
ships. However, the "legality" of this 
instrument for exercising national 
power is a very tenuous matter in the 
minds of jurists, being circumscribed by 
a number of significant preconditions, 
the absence or violation of any of which 
may void the blockader's claim to legiti- 
mate right, and expose him to heated 
controversy. 

The fundamental concept of mari- 
time blockade is an ancient one, and, in 
its essence, it seems to be fully in 
harmony with the realities of national 
existence even in a modern world. How- 
ever, it is the purpose of this paper to 
suggest that the precise technical condi- 
tions surrounding the modern instru- 
ment of blockade have overlaid this 
fundamental concept with elements 
which have divorced the doctrine from 
reality. 

The modern doctrine of blockade 
and the associated principles of contra- 
band have evolved over centuries, re- 
maining basically constant in the princi- 
ples invoked but continuously changing 
as to structural details. Thus, there 



appears to be a sound basis for consider- 
ing that the current "legal" definition of 
the terms and concept of blockade is 
but the most recent step of an evolu- 
tionary process which has not yet ar- 
rived at logical maturity. 

That the process might shortly be 
required to respond once more to the 
stress of international conflict seems 
apparent. With few exceptions, those 
modern states having pretensions of 
becoming international makeweights 
have sought to establish for themselves a 
claim to a share in the wealth and 
prestige resultant from international 
carrying trade. Even the Soviet Union, 
long a formidable land power, has begun 
to make its presence felt in the great 
competitive arena formed by the world's 
oceans. Compounding the commercial 
threat of this seaward expansion by the 
Soviets, the United States is faced as well 
with their sponsorship of militant world 
communism through the new medium 
of "wars of liberation." It seems super- 
fluous to state that the United States 
today finds itself in a position analogous 
to that of insular Britain in the face of 
Napoleon— a power dependent on sea 
communication with its allies, its 
sources of crucial materials, and its 
markets, opposed by a dedicated and 
ingenious enemy having central lines of 
communication. To confine that threat 
to the limits of continental Europe was 
the aim of Britain's effort in the 18th 



173 



and 19th centuries, while the aim of the 
United States today must also be to 
contain the Communist threat within 
the limits of its existing sphere of 
influence in Eastern Europe and Asia. 

Britain's success against Napoleon 
was gained largely through her intelli- 
gent application of all the devices of 
seapower available to her, including that 
of blockade— not a blockade according 
to rules made by scholars and law 
clerks, but one governed by rules born 
of the dictates of necessity and the 
talents of seamen— a viable doctrine, 
responsive less to the protests of diplo- 
mats than to the realities of the threat 
to be overcome. 

This paper proposes to review in 
detail the evolutionary process to which 
the concept of maritime blockade has 
been subjected in order to point out the 
historic facility by which nations yield 
up principle in favor of political reality. 
Further, it is intended to illustrate that 
the doctrine of blockade is merely part 
of a larger scheme which is appropriate 
for application as an instrument of 
national power in the complex interna- 
tional society of the current century. 

It will not be advocated that the 
"rule of law" so treasured by our 
Western society be overthrown in a 
quest for temporary advantage. It is 
hoped merely to articulate what is 
believed to be an existing ground swell 
of legal and lay opinion that "laws and 
institutions are constantly tending to 
gravitate. Like clocks, they must be 
occasionally cleansed, and wound up, 
and set to the true time." 1 

I-FOUNDATION OF THE LAW 
AND CUSTOM OF BLOCKADE 

In ancient times, conflicts between 
rulers of tribes or the early city-states 
usually resulted in the involvement of 
all political entities adjacent to associ- 
ated military operations. Belligerents, as 
the active participants became known, 
always attempted to convert non- 



participatoxs into allies; failing in that, it 
was expected that action could be taken 
to at least insure that the opposition 
would not receive the assistance of 
bystanders. Such action normally re- 
sulted in some form of operations 
against the commerce of the neutrals, as 
they later came to be known, and such 
interference was justified on political 
rather than legal grounds, if indeed it 
were thought necessary to justify it at 
all. 2 In those early centuries of human 
violence, the "style" of warfare was 
usually that of the siege against the 
strong points of an enemy rather than 
general campaigns throughout the coun- 
tryside. Under such circumstances, little 
need existed among states to formulate 
any sort of legal basis for regulating the 
trade of neutrals with all belligerents, 
since it was clearly unprofitable for an 
apolitical neutral to attempt to continue 
trade with a besieged point when a 
ready market for his goods existed 
among the besiegers. On the other hand, 
neutrals were normally required to con- 
tinue trade with any accessible belliger- 
ent, since "the discontinuance by a 
neutral of intercourse with either bel- 
ligerent, where not an effect of the 
operations taking place . . . seemed 
... so plain a form of alliance with or 
subservience to, the other . . ." 3 that it 
was clearly a political act rather than 
one arguable as a matter of law. 

Before it was possible to contemplate 
legal justification for the continuance or 
suspension of commerce with a bellig- 
erent by a neutral, it was first necessary 
for the concept of neutrality to become 
in "some" form a recognized institution 
of the law of nations, and until the 
freedom of neutral commerce was in 
some form guaranteed.' This status of 
authorized impartiality of third states 
while war raged between others was not 
formalized and incorporated into the 
law of nations as the institution of 
neutrality until the 16th century. 5 Until 
that time, the principle of land warfare 
which forbade all forms of intercourse 



171 



with besieged places governed. Toward 
the Liter portion of the period the 
growth 01 internationa] commerce in- 
tensified the belief thai partial ncu- 

tralit\ Was unjust, and rules aimed at 

formalizing the limits of a "just neu- 
trality 1 began to evolve. The earliest ol 

these rules ended the total interdiction 

ol neutral commerce with besieged 
places hut enjoined neutrals from trans- 
porting into such places either armed 

troop- or specified materials which 
would tend to mitigate the effects of 
th< siege. One author points out that 
thi> relaxation was more significant as 
the establishment of a principle rather 
than an) meaningful authorization to 
trade, "since places so circumscribed 
would be very unlikely markets to seek 
with articles not of some immediate 
utility to the defense." 7 

Thus, by the 16th century, at least 
some elementary rules regulating neutral 
commerce with respect to belligerents 
existed, although they were derived 
principally from the experiences of land 
warfare. It was at this time that the 
unilateral action of one state, Holland, 
introduced into the growing stream of 
international law a new principle, based 
in part on older precedent. The princi- 
ple was that of blockade, whereby a 
belligerent has come to be entitled as a 
matter of law to cut off the free access 
of neutral commerce to the ports or 

fa 
an enemy. 

In 1584, while at war with the 
Spanish Netherlands, the Dutch Govern- 
ment issued a proclamation (placaat) 
declaring that all Flanders ports then in 
the hands of Spain were under siege 
from the sea, and that no commerce 
would be allowed entry. 9 This preten- 
sion was based on the ancient right of a 
besieger to prevent by all means avail- 
able the crossing of a line of investment 
by a neutral and the fact that the Dutch 
naval forces had considerable power to 
enforce the declaration on neutrals 
seeking entry. Significantly, no effort 
was made to invest these ports with land 



lorees at the same time, although it was 
deaii) the Dutch intention "to use the 

right ol siege on an unprecedented 
scale. 

The concept ol tin' maritime block- 
ade thus was established at the end of 
the Kith century, but before any sense 
of legality could he attached to it, it was 
necessary for the publicists to begin the 

process of formalizing the institution by 

incorporating it into the growing body 
ol writings which we have come to 
know as the law ol nations. The most 
renowned of the early publicists, 
Grotius, writing in 1624, obliquely men- 
tions the justification for the closure of 
ports as distinct from the idea of con- 
current siege by land forces in the 
following terms: 

For if I cannot defend myself 
without intercepting what is sent, 
necessity . . . will give me the right 
to intercept it . . .. If the introduc- 
tion of the supplies impeded me 
in the pursuit of my right, and 
this was open to the knowledge of 
the person who introduced them, 
as if I was [sic] keeping a town 
invested, or ports closed, and a 
surrender or peace was already 
looked for, he will be bound to 
repay me for the damage occa- 
sioned by his fault . . ..* 1 (Em- 
phasis added.) 

This early articulation by Grotius is 
significant for several reasons. First, by 
the use of the words "keeping a town 
invested, or ports closed," he seems to 
imply that he was considering two 
distinct concepts, one of siege in the 
traditional sense, and the other of 
blockade in the more modern sense, 
although he fails to use the word 
"blockade." 12 Secondly, the use of the 
phrase, "and a surrender or peace was 
already looked for," has been inter- 
preted as indicating an essential differ- 
ence between actual blockades backed 
up by real naval strength as opposed to 
fictitious blockades laid on only by 
placaat. 13 It is exactly this point of 



175 



actual versus "paper" blockades that 
later became so controversial in the 
evolution of neutral rights at sea, and it 
is noteworthy to see that this issue was 
anticipated in the earliest days of the 
institution. Finally, the statement actu- 
ally prohibits all commerce with be- 
sieged places, since, as noted above, 
such places would have little interest in 
goods not helpful in some way to the 
defense, and all such goods were his- 
torically prohibited. 

In 1630, with Grotius' formulation 
only five years old, the Dutch once 
more desired to apply naval pressure on 
Flanders, but by this date had not the 
means to apply this new form of siege 
to all ports at the same time. Question- 
ing the applicability of blockade under 
these conditions, and fearing to an- 
tagonize the now-neutral England, the 
Admiralty of Amsterdam was queried 
for its opinion. The analysis given was 
summed up by a jurist writing in a later 
century, and was to the effect that "the 
rule which obtains in the case of towns, 
which are properly said to be be- 
sieged . . . extends also to the enemy's 
ports, which when invested by ships, are 
said to be besieged." 1 Accordingly, the 
States General announced in a placaat 
dated 9 July 1630, that the Flanders 
coast was blockaded and that neutral 
ships found at any distance from 
Flanders intending to call at those ports 
would be confiscated. Further, the 
placaat went on to state that ships 
which succeeded in passing the blockade 
into Flanders ports would remain sub- 
ject to confiscation wherever inter- 
cepted on the outward voyage. 15 Here, 
then, is the source document of the 
modern institution of blockade— all 
commerce to be cut off, without regard 
to its status as contraband, with the 
further claim to vast powers over neu- 
tral commerce far removed from the 
actual place of investment. This preten- 
tious claim by the Dutch did not remain 
unchallenged, of course. Although the 
blockade thus established did not last 



very long and no records are available as 
to its results, the swift development of a 
body of treaties between Holland and 
various countries beginning with the 
French in 1646 (all of which rejected 
the broad principles of the 1630 
placaat) indicates vigorous neutral diplo- 
matic activity to secure their trade with 
belligerents. 1 Such activity continues 
even today. 

As the proponents of the institution 
of blockade, the Dutch continued to 
figure prominently in its development 
so long as they remained a significant 
seapower. Their stewardship of the insti- 
tution during this era has been charac- 
terized by the English jurist Westlake as 
having been "marked by the widest 
renunciation of the right to interfere 
with neutral commerce, the widest 
actual interference with it when oppor- 
tunity offered, and the absolute refusal 
to recognize [the right to] a similar 
interference with it by others." 7 The 
Dutch did not remain alone for long, as 
the changing realities of European 
power soon brought the rising seapower 
of England into partnership with them 
in proclaiming a blockade "of France 
and all French possessions" after 1689. 
In this proclamation, both states resur- 
rected completely the spirit of the 1630 
Dutch placaat by asserting the intention 
of capturing ships bound for French 
ports wherever found. 18 This first 
appearance of England as a blockading 
power should be marked as some sort of 
milestone since she continued to occupy 
that role almost perpetually afterward, 
rapidly assuming from Dutch hands the 
responsibility for enforcing and en- 
larging the doctrine. Additionally, West- 
lake claims that this event is the 
probable source of the basis for all 
English (and consequently American) 
Prize Law, which, according to repeated 
Admiralty and U.S. Supreme Court 
decisions, has been derived from "the 
received law of nations": i.e., the 
placaat of 1630. 19 

The British, however, did not 



176 



vacillate in their application of this new 

doctrine as had the Dutch. The} 
claimed the right to interdict com- 
pletelv neutral commerce- hound lor 
their opponents and in the years im- 
mediately following established the 
British "doc trine of war that, no matter 
h\ whom carried, goods lor an enemy or 
belonging to an enemy could legiti- 
mately be taken.' 20 From this date 
onward, the history of blockade is 
largely the history of England and her 
rise to maritime greatness. When Britan- 
nia ruled the waves, one of the most 
efficient tools of her leadership was the 
blockade. 

II-BRITISH SEAPOWER 
AND BLOCKADE 

Throughout the 18th century, 
Europe was in an almost constant state 
of war, with Britain sometimes a bel- 
ligerent, sometimes neutral, and some- 
times cast in both roles simultane- 
ously. 21 During the period, the crucible 
of frequent and intensifying war not 
only permitted the forging of a refined 
instrument of blockade but forced as 
well the advancement of naval tech- 
nology at an accelerated pace. In 1700, 
fleets generally duplicated the practice 
of land armies in retiring to winter 
quarters, leaving only a small force to 
patrol vital areas. By 1800, large squad- 
rons were able to be constantly at sea, 
exercising dominion over vast areas of 
the ocean surfaces by virtue of their 
presence. Such increased activity "made 
far more rigorous and oppressive" those 
British assertions over control of neutral 
commerce made in earlier years. 2 The 
growing presence of the Royal Navy at 
sea was met by ever more vociferous, 
but generally ineffective, resistance on 
the part of maritime neutrals toward 
interference with their claimed rights to 
trade with any country with which they 
were at peace. 

The turbulence of the age was 
capped by the cataclysmic struggle 



against the French Revolution and 
Napoleon. A passage by Mahan best 
describes the situation as it affected 
neutral states: 

In the effort to bring under the 
yoke of their own policy the 
commerce of the whole world, the 
two chief contestants, France and 
Great Britain, swayed back and 
forth in deadly grapple over the 
vast arena, trampling underfoot 
the rights and interests of the 
weaker parties; who, whether as 
neutrals, or as subjects of friendly 
or allied powers, looked helplessly 
on, and found that in this great 
struggle for self-preservation, 
neither outcries, nor threats, nor 
despairing submission, availed to 
lessen the pressure that was gradu- 
ally crushing out both hope and 
life. 23 

British practice was especially 
onerous, as she clung to her contention 
that blockades were enforceable by 
far-ranging isolated cruisers, and she 
frequently declared blockades backed 
by just sufficient naval force as to 
permit the barest claim to efficiency. 
But the real basis of neutral complaint 
against England was the belief that the 
British use of the blockade often had 
the aim, not to deprive an enemy of 
goods, but to secure for Englishmen the 
trade thus barred to neutrals. The 
suspicion appears justified in the light of 
an observation by Lord Grenville in a 
letter of 18 February 1806, in which he 
says: 

We have a right to prevent that 
[trade] which is injurious to us, 
and may, if we think right, in 
cases where we think the advan- 
tage to ourselves compensates or 
overbalances the injury; a princi- 
ple manifest in the case of a siege, 
where we exclude all the world 
from intercourse with the town 
besieged, but carry it on ourselves, 
whenever we think it beneficial to 

i 2 4 

our interests to do so. 



177 



In response to this so-called British 
system, "the continental powers began 
to aim only at establishing some rule 
which should prevent ineffective, and 
therefore . . . inequitable, blockades." 
These continental powers advocated 
another interpretation of the blockade 
principle which was drawn from their 
own experience as maritime states more 
often cast in the role of neutrals rather 
than belligerents. In their view, block- 
ades could only be legitimate "if there 
be manifest danger in entering the 
blockaded port, from the cannon either 
of ships, stationary and sufficiently near 
one another, or of works on land." 26 
That is, they claimed that the right of 
the blockading power to interdict non- 
contraband neutral commerce derived 
solely from the blockader's ability to 
control the sea immediately off the port 
in the same sense that a besieging army 
could command the land approaches to 
a town. 2 7 

Countering this claim, the British 
insisted that the legality of a blockade 
was proven if the blockader could 
"maintain such a force as would be of 
itself sufficient to enforce the block- 
ade." 28 Additionally, Britain refused to 
accept any limitation on the geographic 
placement of the blockading forces or 
of their numbers. The real danger 
needed to make a blockade effective, 
and thus legal, she asserted, could be 
posed by numbers of individual cruising 
warships even at great distances from 
the blockaded coast; and that such 
cruisers, in keeping with the practice of 
Holland in earlier years, could capture 
lawfully even intended violators of the 
blockade. The British position, thus, 
was identical to that of the Dutch at the 
time of the 1630 placaat, and, as the 
Mahan quote above indicates, no power 
or plea could move them from it in the 
face of the threat from France. 

At the same time, however, it was 
realized in Britain that the maritime 
balance of the world had begun to shift 
from European waters, for "a new 



power had now arisen on the western 
shore of the Atlantic, whose position, 
and maritime spirit, were calculated to 
give new and vast importance to every 
question of neutral rights. " 2 9 The early 
British appreciation of deep American 
interest in affairs concerning maritime 
neutral rights was predicated on the 
announced aims of the newborn Re- 
public from the earliest days of inde- 
pendence. 30 Even the earliest American 
diplomacy attempted to deal with all 
aspects of maritime commercial 
freedom in order to secure for her 
private traders and national good the 
benefits of international commerce, but 
the basic American view of blockade is 
best represented in the instructions 
given to the American Minister in 
London in 1804, which said, in part: 

In order to determine what 
characterizes a blockaded port, 
that denomination is given only 
. . . where there is by the disposi- 
tion of . . . ships stationary or suf- 
ficiently near an evident danger in 
entering. 3 

The fictitious blockades pro- 
claimed by Great Britain, and 
made the pretext for violating the 
commerce of neutral nations, has 
been one of the greatest abuses 
ever committed on the high 
seas. . . . The whole scene was a 
perfect mockery, in which fact 
was sacrificed to form, and right 
to power and plunder. 

What had been a controversy be- 
tween Britain and the continental neu- 
trals was now joined by a parallel, but 
independent, controversy between 
Britain and America; yet, British deter- 
mination to uphold her position "be- 
came a cornerstone of national policy," 
and "was considered of such importance 
in 1812 that ... we considered the dis- 
advantages of having the United States 
added to our enemies less than those 
that would follow from a modification 
of our code." This intransigence had 



178 



it> expected re8llll when President Madi- 

-<>n "made clear that 'mock blockades 1 
were one of the principal causes of the 
war* 1 which opened in 1 H 1 12. 

Neither the European settlement at 
Vienna in 1 81 5 nor the Treat) of Ghent 

between Britain and the United States 
late in the preceding year resolved the 
issues of neutral rights so hotly con- 
tested through the previous 25 years. It 
remained lor the next major European 
war to bring about the conditions under 
which some degree of reconciliation 
between the opposing views could be 
attained. In 1854, the perpetual ene- 
mies, continental France and insular 
Britain, were allies in the Crimean War 
which opened in that year. If they were 
to be effective in the joint application 
of their seapower, it was recognized that 
some compromise must be struck on 
their policies toward neutral rights at 
sea, and a temporary agreement was 
reached. At the Congress of Paris in 
1856, this compromise was enacted into 
a joint convention among the states 
present and was promulgated as the 
Declaration of Paris, in which all mari- 
time powers were invited to join. 

The Declaration of Paris represented 
the first codification of the rules of 
maritime war which was generally 
accepted among maritime states. The 
Declaration consisted of four points of 
agreement among the powers, of which 
the first abolished privateering, and the 
fourth declared the principle that: 

Blockades, in order to be bind- 
ing, must be effective; that is to 
say, maintained by force suf- 
ficient really to prevent access to 
the coast of the enemy. 
Even this enunciation fell far short of 
complete reconciliation of the differ- 
ences of the powers, as the language 
apparently was left deliberately obscure 
and ambiguous. Britain remained free to 
interpret "force sufficient really to pre- 
vent access" as she might see her inter- 
ests at the moment. In retrospect, it is 
clear that the Declaration simply 



codified the pragmatic essence of recent 

experience, and is significant less for its 
content than for the fact that any 

agreement was possible among the self- 
seeking states which authored it. It is 
significant to point out that it was 
historic British policy and seapower 
alter 1689 which essentially fixed both 
the form and scope of the Declaration, 
since the principles set forward either 
conformed directly with those policies 
or were generated by the erosion of 
certain facets of them by decades of 
neutral resistance. 

The broad theoretical claims of Brit- 
ish blockade policy over those years 
were given meaning and effect by Brit- 
ish seamen. However, the reality of 
British principle is summed up by the 
remarks of one Member of Parliament, 
who, after acknowledging insular Brit- 
ain's dependence on imported food and 
exported manufactures, goes on to say: 
These considerations have 
always led us, practically, to vio- 
late our own theory of a com- 
mercial blockade, whenever the 
power to do so has remained in 
our hands .... It is true we have 
maintained, for our navy, the tra- 
ditional right and duty of a block- 
ade, whilst (I beg your attention 
to the distinction) we have in- 
variably connived at its evasion. 

III-AMERICAN INFLUENCE ON 
THE LAW: CONTINUOUS VOYAGE 

Although American influence on the 
Declaration of Paris was negligible, the 
maturing of her sea strength and the 
necessities of the American Civil War 
which broke out in 1861 were to leave a 
distinct American influence on the 
further evolution of the recognized prin- 
ciples of blockade. During that conflict, 
American courts were to apply a prin- 
ciple to blockade which had once been 
purely a colonial policy of the European 
mercantilist states, i.e., the Doctrine of 
Continuous Voyage. 



179 



Shortly before the outbreak of the 
insurrection, the United States position 
with respect to the law of blockade was 
summarized in the instructions of the 
American Secretary of State to Ameri- 
can Ministers abroad. The position 
taken reverted to the archaic view of the 
blockade as an extension to seaward of 
investing forces around localized mili- 
tary strongpoints. In the words of the 
Secretary: 

The investment of a place by 
sea and land with a view to its 
reduction ... is a legitimate mode 
of prosecuting hostilities . . .. But 
the blockade of a coast, or of 
commercial positions along it, 
without any regard to ulterior 
military operations, and with the 
real design of carrying on a war 
against trade ... is a proceeding 
which is difficult to reconcile with 
reason or with the opinions of 
modern times. To watch every 
creek, and river, and harbour 
upon an ocean frontier, in order 
to seize and confiscate every ves- 
sel .. . attempting to enter or go 
out, without any direct effect 
upon the true objects of war, is a 
mode of conducting hostilities 
which would find few advocates if 
now first presented for considera- 



tion 



39 



This interpretation was one not only 
substantially out of step with the dis- 
tilled theory of the previous centuries 
but one directly contrary to that 
adopted by the Federal forces in 1861. 
It is instructive only as one additional 
example of the readiness of states in the 
international community to lay what- 
ever interpretation on ambiguous as- 
pects of the law of nations as best serves 
their instant interests. In 1859, Cass was 
expressing an interpretation that would 
favor the commercial interests of the 
United States in any contest of major 
European naval powers; it represents 
merely a diplomatic gambit to compen- 
sate for America's weak naval strength 



as opposed to the European states. In 
1861, however, the Federal Government 
found itself at war with a group of 
southern states whose maritime poten- 
tial was miniscule compared to that of 
the North, and consequently we find 
the North quickly attempting to occupy 
the same "high ground" so firmly held 
by Great Britain vis-a-vis the United 
States. Once more, principle yielded to 
political reality. 

President Lincoln acted within a 
week of the fall of Fort Sumter to 
proclaim on 19 April 1861, that the 
ports of the rebellious states from South 
Carolina to Texas were blockaded "in 
pursuance of the laws of the United 
States and the law of nations," later 
extending the blockade to the states of 
Virginia and North Carolina as their 
rebel status became apparent. 

Although the United States had re- 
fused to accede to the recent Declara- 
tion of Paris, 1 the question of effec- 
tiveness of the blockade was immedi- 
ately a point of controversy, as the 
United States had long championed the 
principle of "effectiveness" as a deter- 
minant of legality. One historian has 
noted that in April 1861 the Federal 
Navy possessed only 35 modern vessels, 
and that only three steam-propelled 
vessels were immediately available for 
blockade duty. 42 Another points out 
that the length of the shoreline to be 
interdicted by this force was in excess 
of 3,500 miles, from Washington down 
the Potomac around to the mouth of 
the Rio Grande, and that it included 
189 river mouths and harbors. 

It is easy to visualize the mixture of 
skepticism and outrage with which Brit- 
ain and the other European maritime 
powers greeted the pretensions of the 
Federal Government! Truly, "an effec- 
tive blockade on such a scale was a thing 
unprecedented, even in the operations 
of the foremost naval powers in the 
world." 44 

Nevertheless, the normal seaborne 
trade of the southern states declined 



180 



immediately alter the proclamation of 
blockade, parti) because Borne neutrals 
acceded t*» it vohintaril) and took their 

trade el>ewhere, lnit more likeK because 
of tlie normal dislocation of trade ac- 
company in^ a shilt from a peacetime to 
a wartime economy. This reduction 
ol trade and its effect on the price of 
cotton in Europe lent credence to the 
Federal claim to effectiveness of their 
skeletal Bea forces in the early months 
of the blockade. 46 

Soon, however, the weakness of the 
Federal force, combined with the grow- 
ing demand in the South for the import 
of the sinews of war, encouraged the 
development of enlarged trade efforts in 
defiance of the blockade. Since under 
Vnglo-American policies the liability to 
capture began for the blockade runner 
at the moment of departure on the 
illegal voyage, enterprising shippers 
sought to shorten this exposure to a 
minimum. The several neutral ports 
which closely surrounded the blockaded 
area, such as Bermuda, Nassau, Havana, 
etc., soon became entrepots for the 
transshipment of goods bound in and 
out of the South. The arrangement 
facilitated specialization of shipping 
used in the trade, with fast, shallow- 
draft steamers used for the two- or 
three-day run in and out of the block- 
aded ports, and large slow, and stout 
vessels used for the long ocean crossing 
to Europe. 47 

The Federal authorities now looked 
to the mercantilist Doctrine of Continu- 
ous Voyage as justification for the 
arresting of this trade. Union cruisers 
operated far offshore to back up the 
forces available for close-in observation 
of southern ports, and deliberately 
positioned themselves to intercept 
oceangoing traffic bound from Europe 
to the various neutral ports off the 
southern coast. They soon began to 
bring in for adjudication under prize law 
a number of neutral vessels, mostly 
British, which appeared from their 
cargoes and documents to be enroute to 



such ports. In the first announced deci- 
sion, which was not appealed by the 

British owners, ship and cargo were 

condemned for attempting violation of 
the blockade. The U.S. District Court 

held that: 

The cutting up of a continuous 
voyage into several parts ... can- 
not make a voyage which in its 
nature is one to become two or 
more voyages, nor make any of 
one entire voyage to become legal 
which would be illegal if not so 
divided. 48 
A better-known case, that of the Ber- 
muda, which was finally decided in 
1865, is even more definitive of the 
Doctrine as applied by the American 
Courts. Intercepted on a voyage be- 
tween Bermuda and Nassau, both neu- 
tral ports, the Bermuda and her cargo 
were condemned by the District Court 
for attempted blockade running. On 
appeal to the U.S. Supreme Court, the 
decision was confirmed, because, in the 
words of the Court: 

Successive voyages, connected 
by a common plan and a common 
object, form a plural unit. They 
are links in the same chain, each 
identical in description with every 
other, and each essential to the 
continuous whole. The ships are 
planks of the same bridge, all of 
the same kind, and all necessary 
to the convenient passage of per- 
sons and property from one end 
to the other. 4 
The most celebrated case of the war was 
that of the Springbok, which had been 
captured enroute from London to Mata- 
moros, Mexico, a port adjacent to the 
Rebel port of Brownsville, Texas. On 
appeal, the Supreme Court confirmed 
the condemnation of the cargo only, 
saying: 

That the voyage . . . was as to 
cargo, both in law and in the 
intent of the parties, one voyage; 
and that the liability to con- 
demnation . . . attached to the 



181 



cargo from the time of 
sailing. 5 
Two significant aspects of the Spring- 
bok case are worth noting. First, the 
initial condemnation had been based on 
evidence adduced from two other cases 
then in the process of being tried. 5 
This violated the traditional principle 
that condemnation must derive solely 
on evidence adduced from the ship's 
papers or the responses of her officers 
or crew to interrogation. Secondly, the 
British Government openly approved 
the decision in its rejection of the 
request of the British owners for an 
expression of protest, by saying: 

Having regard to the very 
doubtful character of all trade 
ostensibly carried on at Nassau, 
and to many other circumstances 
of suspicion before the Court, Her 
Majesty's Government are not dis- 
posed to consider the argument of 
the court on this point as other- 
wise than tenable. 52 
Some observers 53 viewed the absence of 
British protest as reflecting a sinister 
intent to let the method and decision 
stand as a precedent upon which to base 
future British actions, as in fact they did 
during World War I. 

In the extension of the Doctrine of 
Continuous Voyage to blockade, the 
American courts had moved into an 
area without exact precedent; even in 
the colonial confiscations, no ship or 
cargo had been condemned during the 
first stage of an illegal voyage. Under- 
standably, international jurists 
expressed general disapproval, and over 
the next several decades dozens of 
criticisms of the American action were 
delivered within the international law 
community. This wave of disapproval 
culminated in an expression by the 
maritime prize committee of the In- 
stitute of International Law in 1882 
that such a doctrine, if allowed to 
stand, would "annihilate" neutral trade 
on the mere "suspicion that the car- 
go .. . may be transshipped . . . and 



carried to some effectively blockaded 
port. 

The Doctrine of Continuous Voyage 
was not a uniquely American contribu- 
tion to the developing law, being 
founded in earlier British colonial prac- 
tice, but its application to blockade by 
American courts opened the Pandora's 
box which had long served to contain in 
large measure the most volatile issues of 
neutral rights. By this action, the United 
States unwittingly contributed to the 
growing demand of all maritime powers 
for some consensual formulation of the 
law of maritime warfare, a demand 
which was realized shortly after the 
opening of the new century at the 
London Conference of 1908-1909. At 
that conference, the confused interpre- 
tations of centuries of experience would 
be clarified in a code of maritime 
warfare known as the Declaration of 
London— a code which even now in the 
1960's stands as the only accepted 
formulation of the law of blockade and 
contraband. 

IV-PRECEDENT ENSHRINED: 

THE DECLARATION 

OF LONDON, 1909 

The Hague Peace Conference of 1907, 
at the suggestion of both the British and 
German delegates, adopted a Convention 
for the establishment of an International 
Prize Court as a court of appeal from the 
national prize courts which alone had 
traditionally evaluated the lawfulness of 
captures made at sea in time of war. 
Before such a court could function, 
however, it was necessary for all maritime 
powers to agree on the standards of 
maritime warfare which the Court would 
be required to enforce. Accordingly, 
Great Britain suggested that a conference 
of such states be assembled in London in 
late 1908 to formulate "rules which, in 
the absence of special treaty provisions 
applicable to a particular case, the Court 
should observe in dealing with appeals 
brought before it. " 5 5 



182 



Such i conference did convene in 
November 1908, and proceeded to 
devise a code of maritime warfare which 
was generally acceptable to the repre- 
sentatives t»l the maritime community. 
It was issued in Februarj L909 as the 

I declaration of London. 

Hie Declaration was the first, and 
only, exhaustive compilation of all the 
aspects of maritime warfare which had 
tor BO long divided tlie maritime powers 

of the world. Even though the Declara- 
tion ultimately failed to be incorporated 
formal!) into tin* law of nations, it 
remain- even toda\ as the basis for the 
current international law on blockade, 
contraband, and neutral maritime rights. 

The Declaration treated the matters 
of blockade and contraband quite ex- 
tensively, devoting 44 of its 71 Articles 
to those topics. In brief, it confirmed 
the 1856 pronouncement of effective- 
ness as the test for legality of blockade 
and, contrary to the wishes of the 
United States, 56 forbade the applica- 
tion of the Doctrine of Continuous 
Voyage to blockades, reserving it for use 
only against absolute contraband. 57 
Further, the Declaration forbade inter- 
ference by blockading forces with access 
to neutral coasts or ports, a point much 
sought after by the northern European 
neutrals. 58 

When the Conference adjourned on 
26 February 1909, the delegates re- 
turned home feeling that they had 
contributed to a great stride forward in 
the regularization of international 
affairs. However, despite Britain's role 
as sponsor, the publication of the Decla- 
ration while pending ratification 
brought great opposition by many 
Britons who saw it as an abdication of 
British power. 59 When the House of 
Lords failed to enact a bill in support of 
the International Prize Court in 1911, 
the Declaration was effectively rejected. 
Since Britain had failed to take the 
initiative in ratifying the Declaration, 
the remaining powers saw the futility of 
attempting to consider it as a viable 



ment of the law of nations, and the 

Declaration began to gather dust on the 

shelves of law libraries throughout the 
world. 

Nevertheless, the Declaration did 

exist as die most recent consensus of 

the law of maritime war when World 
War I broke out in 1914. Further, since 

British representatives had contributed 

to its construction and had endorsed its 
provisions at the close of the Con- 
ference, the maritime powers of the 
world looked on the defunct Declara- 
tion as "not merely a codification of 
law," but as a "declaration of British 
maritime policy." 

Although this appraisal may have 
been accurate under the conditions 
existing in 1909, it appears that when 
faced with the actuality of war with the 
Central Powers in 1914, Britain realized 
that a blanket acceptance of the Dec- 
laration would be inimical to her na- 
tional interest. Consequently, she an- 
nounced on 20 August 1914, that the 
Declaration would be the general basis 
of her maritime policy during the war 
but "with certain modifications.' l 
These modifications ultimately rendered 
impotent the most significant advances 
made under the Declaration, from the 
point of view of the neutral maritime 
states. By 1918, the terms of the Dec- 
laration aimed at protecting neutral 
rights had been honored more by their 
breach than their observance. With 
respect to the detailed principles of the 
law of blockade so extensively set out in 
the Declaration, Britain avoided their 
restrictions simply by not declaring a 
formal blockade. The rationale was 
quite pragmatic, although not expressed 
openly until long after the war. From 
the British view, 

A formal declaration of block- 
ade was deemed inadvisable for 
strategic and legal reasons; naval 
experts realized that we could not 
operate successfully in the Baltic 
with any continuity . . .. More- 
over, the Baltic is only one of the 



183 



commercial gates into Germany, 
and much of her trade arrives via 
Rotterdam . . .. Thus, it would be 
wiser not to announce the word 
"blockade." 62 

The prewar views of at least one 
British naval authority had recognized 
before 1911 that the realities of modern 
war had outstripped the detailed legal- 
isms of the Declaration. After noting 
the practical impossibility of maintain- 
ing a close blockade against a continen- 
tal enemy in the face of submarines, 
torpedo boats, and mines, this prescient 
naval officer went on to assert that the 
doctrine of blockade had become 
merged within a larger doctrine dictated 
by 20th century necessity— that of total 
economic war. Pointing out the particu- 
lar sensitivity of both Britain and Ger- 
many to attack through their com- 
merce, he went on to outline proposed 
British actions in the event of a war 
with Germany on the assumption that 
the terms of the London Declaration 
could be ignored or avoided. He 
advised: 

In that case, our obvious 
course, to be adopted as soon as 
the naval situation permitted, 
would be to declare a blockade of 
the North Sea ports, and simul- 
taneously to make a sweeping 
declaration of what was contra- 
band, including all the principal 
raw materials . . .. Neutral vessels 
would be rigorously held up and 
examined . . . the doctrine of con- 
tinuous voyage would be rigor- 
ously applied. 

The British actions after 1914 closely 
paralleled this program with all manner 
of additional devices employed in the 
effort to completely cut off all German 
sea commerce. These activities greatly 
antagonized the neutral trading powers 
but ultimately resulted in the total 
disruption of German economic 
strength and starvation for her popula- 
tion. Despite an intention early in the 
war to remain within the generally 



accepted rules of the Declaration, by 
1915 the effects of new technology had 
begun to be exerted, and both Germany 
and Britain embarked on open and 
unrestricted economic war against the 
other's commerce. It might be suggested 
that the only principle of international 
law which was strictly observed 
throughout the war was that of neces- 
sity, whereunder all manner of hereto- 
fore reprehensible actions could at least 
be rationalized. 

The enactment of the Declaration, its 
failure of ratification, and its ultimate 
rejection under the stress of modern 
technology are all significant to this 
study, but it seems specious to berate 
the obvious direct contribution of these 
events to the thesis of this paper. It 
seems more profitable to point out 
some of the less obvious lessons to be 
drawn from this experience. 

The code of maritime war hammered 
out by the delegates to London in 
1908-1909 has made a contribution to 
the developing law of nations. It is 
instructive primarily as a codification of 
historical experience, and also as ex- 
ample of the considerable risk inherent 
in the enshrinement of precedent with- 
out regard either to the special circum- 
stances of its creation or the immediate 
realities of existing technology and 
politics. 

V-CURRENT STATUS OF THE LAW 

The evolutionary process described 
in earlier chapters has remained essen- 
tially at a standstill since the abortive 
London Declaration of 1909. Despite 
the failure of the Declaration to be 
formally adopted by the international 
community, and despite the almost uni- 
versal rejection of its key principles 
during the major wars of this century, 
the terms of the Declaration are yet 
considered to be an acceptable expres- 
sion of the developed law of maritime 
warfare. This paradox is explained by 
the customary practice of the inter- 



L84 



national legal profession of regarding all 
such consensual agreements among 
-Lit< > .i> contributory to the formation 

of law. In its View, the Declaration itself 
i- meaningless as a matter of law; but it 
is Significant still because it represents 
the then-current views of the interna- 
tional community and, tbus, can be 
used as I standard against which to 
compare state practices since that time. 
Thus, it is common to find heavy 
reliance placed by jurists and publicists 
on the terms of the Declaration in their 
extensive writings on the subject of 
maritime warfare. 

There are, therefore, some number of 
fundamental characteristics which a 
given instance of blockade must display 
if it is to avoid condemnation by the 
international jurist and thus command 
the respect and cooperation of the 
community of nations which inhabit the 
modern world. These characteristics are 
derived from the terms of the entire 
developed body of the law, including 
the London Declaration which so con- 
veniently reflects previous experience. It 
will be meaningful, then, to review 
those characteristics given the greatest 
significance by those two bodies of 
organized opinion: First, in order to 
complete the summary of the evolu- 
tionary process begun in the 17th cen- 
tury; and second, to permit a critical 
analysis of the continued validity of 
such criteria in the world of today. 

The first principle generally applied 
is that the right to blockade is one 
deriving only to a belligerent power, 
solely as a function of the existence of 
that state of belligerency. 64 Modern 
publicists do recognize a similar institu- 
tion under a condition short of bellig- 
erency known as pacific blockade, but 
generally dismiss this device of the 19th 
century as outmoded ! and in any 
event not subject to the principles of 
commercial blockade under discussion. 

Secondly, the acknowledged princi- 
ple of the Declaration of Paris regarding 
effectiveness is regarded as crucial to 



establishing the legal sufficiency of a 
blockade since this element requires the 
application of actual naval power to 
enforce the blockade, and is the only 
principle truly accepted as a part of the 
law of nations on the subject of block- 
ade. 66 

Further conditions must be satisfied, 
and they are again usually found to have 
been expressed in the London Declara- 
tion. Among them is the requirement 
that blockades must be confined to the 
coasts or ports of the enemy and that 
access to neutral ports may not be 
restricted. 7 A natural corollary to this 
requirement is the principle that cap- 
tures may not be made if, at the 
moment of interception, the neutral 
vessel is enroute to a neutral port. 68 
This, of course, prevents the application 
of the Doctrine of Continuous Voyage 
to blockades and constitutes a rejection 
by the international law community of 
American practice during the Civil War. 

The issue of when a vessel becomes 
liable to condemnation for breach of 
blockade was left obscure by the Lon- 
don Declaration, which merely men- 
tions the possibility of condemnation if 
"at the time of shipment of the goods" 
the shipper could be presumed or 
proven to have knowledge of intent to 
break the blockade. 69 However, it 
appears that at least Anglo-American 
jurists would support the practice 
whereunder liability would commence 
at the instant of departure for a block- 
aded port. Such a position appears to 
have been supported by American prac- 
tice in 1917. 70 

In addition to imposing restrictive 
conditions on the blockading state, cur- 
rent law as expressed by the publicists 
continues to reward it by acknowledg- 
ing its right to stop completely all sea 
traffic enroute to or from the enemy. 71 
In the view of the international law 
community, no state has the right to 
seize or delay commerce on the high 
seas except under specific conditions 
associated with belligerent and neutral 



185 



status; it is, therefore, asserted by them 
that the advantages to be secured by a 
state only under the precise conditions 
associated with the developed law of 
blockade are sufficient to warrant the 
insistence that states comply completely 
with these conditions when exerting 
naval power against commerce at sea. 

It appears, however, that there are 
some fatal flaws in this argument, some 
of which are traceable to faults in the 
source of modern law and others arising 
purely from the modern status of inter- 
national law itself. 

First, it is clear that the technical 
conditions of the modern law of block- 
ade are derived from the experience of 
maritime states since the 17th century, 
and that these conditions are the 
progeny of similar terms expressed in 
the Declaration of London. But, if the 
Declaration itself could have been re- 
garded within only a few years of its 
formulation as "merely a body of rules 
for regulating naval operations against 
commercial systems that had dis- 
appeared," 72 is it not valid to suspect 
that a modernized form of that code is 
equally contaminated by that charge of 
anachronism? In short, does the view 
of blockade expressed by modern 
writers agree with the realities of the 
social and economic system which it 
seeks to regulate as sound international 
law must do, or is it so far out of step 
with the reality that it needs to "be set 
to true time"? 

VI-BLOCKADE IN THE 
COLD WAR ENVIRONMENT 

It has been shown that the developed 
law of blockade has evolved parallel to 
and coordinate with that body of rules 
generally referred to as international law 
or the law of nations. The general 
subject, international law, is one of 
enormous scope and importance in the 
modern world. However, it is also one 
of broad controversy, imprecise both in 
acceptance and application— a thicket 



into which a layman may proceed only 
with great caution after accepting the 
sure knowledge that at least as many 
authorities in the field will disagree with 
him as may be inclined to agree with his 
views. However, it is necessary to at 
least express some general views about 
the institution in order to analyze the 
position in its context of the modern 
law of blockade. 

First, international law must be a 
tool of world society to be applied in 
regulating the political and economic 
affairs among the member states of that 
society. Historically, the applications of 
this tool have met with varying degrees 
of success and cooperation. Generally, 
the greatest success has occurred in 
applications to matters of obvious 
benefit to all states, such as in the 
establishment of rules for the preven- 
tion of collisions at sea and the prin- 
ciples governing the exchange of diplo- 
matic and consular agents. Further, it 
appears that international law has 
shown the ability to grow in usefulness 
with the passage of time. Those of a 
legalistic turn of mind might suggest 
that this growing utility arises primarily 
from the parallel growth of custom and 
precedent, touching on an ever-wider 
scope of matters of interest to state 
relations. It seems more believable, 
though, to attribute the growing influ- 
ence of the law to the increased recogni- 
tion by states of the necessity for 
members of international society to get 
along with one another in their mutual 
self-interest. Additionally, it appears 
that this recognition of mutual interest 
is directly attributable to the enlarged 
economic and social interdependence of 
the states within the community. 

However, it may be that the law has 
become more effective, and, whatever 
theories one might wish to credit with 
the responsibility for improved per- 
formance, it remains clear only that 
such a body of "law" exists, and that it 
is respected and obeyed by states in 
varying degrees. If it is necessary to 



186 



correlate this variable acceptance with 
•ome factor, it readily appears that, at 

least in the past, obedience and respect 

tor the law has generally been a func- 
tion of state power and the interpreta- 
tion ol national interest. It must be 

admitted that thi> situation seems rea- 

BOnable to the individual observer in the 
light of his own experience with his 
tellow men. 

This last generalization, at least, 
would seem to be borne out by some 
members of the juristic community who 
have considered the revised status of the 
law of nations in the environment of the 
world of the Iron Curtain and the cold 
war. Regarding the historic evolution of 
the law of nations itself, one author 
states that "international legal norms 
underwent constant reinterpretation 
and development— generally keeping in 
step with the evolving needs and policies 
of the stronger states." 74 Another, 
addressing himself more directly to the 
polarized nature of modern world 
politics, observes that "a realistic analy- 
sis of the limited scope for international 
law in East-West relations implies that 
ultimately, these relations are not 
governed by law, but by power." 75 The 
most chilling confirmation of the ob- 
server's assumption of a "power and 
self-interest" theory to explain the 
applicability of law in the modern con- 
text is provided by the words of a 
Soviet jurist, who said in 1948: 

Those institutions in interna- 
tional law which can facilitate the 
execution of the stated tasks of 
the USSR are recognized and 
applied by the USSR, and those 
institutions which conflict in any 
manner with these purposes are 
rejected by the USSR. 76 
How then should the law of blockade 
be regarded in an era characterized by 
such apostasy toward an institution 
which once was viewed with almost the 
same blind faith accorded religion? If 
the law of blockade be a part of the law 
of nations, and if that law of nations 



can be expected t<> command the ad- 
herence ol states only so long as those 
states remain convinced of the sell 
advantage of such adherence, it would 
seem that the law ol blockade may be 
regarded as binding only insofar as its 
tenets reflect the reality of modern 
polities and economics. Wherever the 
developed law of blockade; can be 
shown to rest on precedent no longer 
valid in modern society, it should be 
adhered to only if such adherence is in 
the national interest. Preferably, such 
aspects of the law should be rejected, 
and newer and more timely principles 
should be enunciated in order to bring 
that doctrine to a more logical maturity. 

In keeping with this view, let us 
evaluate the elements of the law of 
blockade as it seems to exist in the eyes 
of modern writers and jurists and see if 
it, in fact, conforms to the social order 
which it is intended to serve. 

First, it is contended that the right to 
blockade is a belligerent right only; that 
is, one which may be exercised only by 
a nation in an acknowledged state of 
war with another. The essence of the 
point is that legality (i.e., general 
approval by the states of society) can 
attach only to a blockade proclaimed as 
an act of war. However, there now 
appears to be some doubt that any act 
of war can be regarded as "legal" 
because of the direction taken by the 
body of international law after World 
Wars I and II. Beginning with the 
Covenant of the League of Nations after 
World War I, 77 progressing through the 
Pact of Paris in 1928, 7 8 and cul- 
minating in the Charter of the United 
Nations signed in 1945, 79 the interna- 
tional community steadily progressed 
toward the official banishment of war as 
an acceptable "legal" means of solving 
international differences. 

At least one authority considers that 
the ancient right of states to make war 
in the "traditional sense is definitely 
ruled out" under the Charter of the 
United Nations since the use of force 



187 



for the settling of disputes is reserved to 
the Security Council by that agree- 
ment. 80 Thus, in a strict sense, no 
degree of legality can be attached to any 
violent act, excepting only acts taken in 
self-defense. 

However accurate this interpretation 
may be, additional grounds seem to 
exist for claiming legality for a blockade 
not declared as an act of war under the 
sanction of belligerent right. The status 
of belligerence exists under law simply 
as a means of describing the condition 
of states not at peace. That is, it appears 
to be based on the inability of the early 
jurists or publicists to conceive of states 
existing in a condition other than that 
of war or its opposite, peace. There is, 
however, some evidence indicating the 
recognition by a measurable segment of 
opinion of a third status, beyond that of 
peace yet short of war. For example, as 
early as 1907 the English jurist Westlake 
considered that such a condition could 
exist, observing that "acts of force are 
not war unless either a government does 
them with the intent of war or the 
government against which they are done 
elects to treat them as war." 81 A more 
recent publicist expressed the idea more 
concretely by stating that "there may 
be ... a state of 'intermediacy' between 
peace and war . . . characterized 
by . . . hostility between the opposing 
parties. . . but accompanied by an 
absence of intention or decision to go to 
war." 2 In a comprehensive discussion 
of the matter, another eminent au- 
thority conceded the significant advan- 
tage of recognizing such a status of 
intermediacy to be that it could be 
endowed with "legal consequences" 
similar in force and effect to the two 
traditional conditions. 3 In the view of 
another author, such legal consequences 
might "include limited restrictions on 
the freedom of the seas hitherto recog- 
nized only in war but falling short of 
full scale blockade." 84 It is clear from 
these observations that such a state of 
intermediacy could exist only where the 



parties to the dispute were unable to 
resolve it within the purely peaceful 
means now available under modern 
international law yet were unwilling to 
extend the tension to a complete war 
status. Is it not equally plain that many 
such situations can and will occur as a 
result of the Soviet-American contest 
for world leadership? Further, in view 
of the great expansion of the Soviet 
merchant marine in the last decade 5 
and the expressed intention of the 
Soviets to support "wars of national 
liberation" wherever occurring, is it not 
probable that confrontations at sea will 
become commonplace in the future 
between the naval forces of the West 
and Soviet seapower? Already the 
Cuban "quarantine" crisis of 1962 
appears in retrospect as an obvious 
example of a condition of intermediacy. 
Because the status of that time had not 
been widely enunciated, the condition 
was not so easily recognized, nor even 
now has it been generally accepted as a 
principle. Yet, it would seem that such a 
status must ultimately be recognized, as 
so many others have been in the past, 
because of the reality of political and 
economic circumstances now abroad in 
the international community. 

Another characteristic of the law of 
blockade which might be open to ques- 
tion in the light of modern experience is 
that provision forbidding interference 
with free access to neutral ports. In 
discussing this provision, it might first 
be observed that it, above all others, 
seems to have been honored more in the 
breach than in the observance almost 
from the day of its formulation in 1909. 
In World War I all pretense of com- 
pliance with this principle was dropped 
after early 1915 by Great Britain. 
The reality of her position on the 
subject was expressed at a later date in 
terms of clearly recognizing the 
dominance of self-interest over princi- 
ple. At that time one authority stated: 
. . . the extent of a belligerent's 

right to interfere with seaborne 



188 



commerce is conditioned bv th<* 
extent of his command of the sea, 
and that the real principle under- 
lying the idea of blockade is the 
right of a belligerent to deny to 
the commerce of his enemy the 
use of areas of sea which he is in a 
position effectively to control. 1 
Associated with the dictum that 
blockading forces may not interfere 
with traffic enroute to and from neutral 
ports is die requirement that no vessel 
mav be seized for breach of blockade if 
she is first encountered on her way to a 
neutral port. That is, the Doctrine of 
Continuous Voyage may not be applied 
to blockade. A cursory review of 
world history since 1914 would reveal 
tli at the practice of states at war during 
that period has been quite directly the 
opposite from that intended by both 
these requirements. In both world wars 
the commerce of neutrals and bellig- 
erents alike was attacked mercilessly 

with all of the means available to the 
contesting powers. There does not seem 
to be any reason to suspect that such 
rules would be observed by the parties 
to any future contest between the major 
antagonists now dominating world 
politics. 

In point of fact, it seems ludicrous to 
contemplate the possibility of any 
meaningful observance of the "legal" 
code of blockade in the current or 
predictable future state of political 
reality. It is clear that the rules of 
blockade came into existence solely to 
protect the ordinary sea commerce of 
neutrals and to regulate the circum- 
stances under which such trade could be 
interrupted. The rules derive out of a 
19th century legal regime— a regime 
oriented toward regulating the conduct 
of states in war and peace. 9 But 
modern international law, of which 
blockade is a part, no longer seeks to 
regulate war but to prevent its occur- 
rence. The formation of a world organi- 
zation dedicated to this end has effec- 
tively ended the issue of neutral rights 



at sea in war by outlawing war and by 
the implied denial of the status of 
neutrality in the face of armed conflict 
by any member of the organization. If 
neutrality as a legal subsystem in inter- 
national law is inconsistent with the 
collective security system of the United 
Nations as alleged, then observance of 
rules created as part of that subsystem 
have at least become optional if not 
completely unnecessary. Certainly, in 
view of the expressed intent of the 
Soviet Union to observe only those 
portions of the law of nations which are 
consistent with its wishes, it would be 
wise for other states to reserve to 
themselves the degree of observance to 
be given to patently outdated rules of 
maritime war. 

VII-CONCLUSIONS AND 
RECOMMENDATIONS 

Under the simplified circumstances 
of antiquity, combatants recognized the 
necessity of depriving the enemy of 
supplies and reinforcements essential to 
his continued resistance. As society 
grew more complex and economically 
more interdependent, the realities of 
international politics dictated that some 
concession be made to nonparticipants 
to retain the support their supplies 
would provide for warlike operations by 
both sides. Such concessions led to the 
concept of neutrality and ultimately 
became thoroughly circumscribed with 
technical conditions under which neu- 
trals might continue trade with any 
belligerent they could reach. But the 
continuing evolution of international 
society resulted in widening the scope 
of wartime operations, as individual 
states accrued great military power, 
they acquired the ability to destroy 
completely the social and economic 
fabric of their enemies, and war had 
become a matter of national survival by 
the beginning of the 19th century. 

Under these classic rules of neu- 
trality, the right to blockade an enemy 



189 



was a valued tool of the belligerent, for 
only by complying with certain 
accepted principles associated with the 
institution could he deprive his enemy 
of commerce with the general acquies- 
cence of the world society. However, as 
war became more total, the once simple 
rules of blockade became more and 
more complex until the technicalities 
imposed in the name of neutral rights 
obscured the fundamental purpose of 
the institution itself— to cut off an 
enemy's commerce and thus weaken or 
starve him to the point of submission. 
As the law grew out of touch with the 
realities of power and politics, states 
which had the naval strength and the 
national will to survive began to ignore, 
corrupt, or circumvent the principles so 
carefully constructed by the scholars 
and legalists. The determining factors of 
compliance with the laws became those 
of self-interest and naval power- 
tempered only by the ability of a state 
to recognize its own long-term self- 
interest. Principle yielded to power and 
necessity, and the emergence of the 
20th century concept of total war 
sounded the tocsin for any carefully 
drawn rule which conflicted with the 
necessities of such conflict. 

The body of international law which 
exists today represents the result of 
forces generated by conflict of the 
international state system since the 17th 
century. It grew in an environment of 
constant change, but the rate of such 
change remained fairly slow until recent 
decades. Many of its precepts are rooted 
in economic, social, and political ex- 
periences of the last century— and the 
law of blockade is peculiarly representa- 
tive of this fault. 

Speaking of international law in 
general, one writer has said: 

To the majority of the writers 
and exponents of international 
law, contemporary changes appear 
as extensions and modifications 
rather than as basic challenges to 
the structure of international law 



and relations. It is submitted that 
the extent of the structural 
changes in international relations 
in our time requires a far more 
basic reorientation in our thinking 
in international law. 
Such a basic reorientation is neces- 
sary at this time with regard to the law 
of blockade. If the historic status of 
"neutrality" can be regarded by some 
authorities as extinct, why cannot a new 
status supersede it? If armed confronta- 
tions between East and West are 
accepted by the international com- 
munity as being something other than 
"war" in the traditional sense solely 
because the contestants have no inten- 
tion to engage in war, then some status 
under law should be accorded to the 
condition. Within such a new category 
of law arising from the circumstances of 
the society it is intended to serve, there 
would be a place for a new code of 
maritime war— a code which would re- 
flect 20th century conditions rather 
than the outmoded precedents set in an 
era which could not even conceive of a 
totally bipolarized world. It appears to 
be manifestly clear that such a code 
would contain rules for the conduct of 
operations against commerce at sea. 
Whether such actions be called blockade 
or "quarantine," commerce warfare will 
always remain as a tool of seapower, 
and a workable code for its conduct 
could only benefit all of world society. 
We are in an era of "limited war" 
because the realities of "total war" in 
the nuclear age are too grotesque to 
consider as real possibilities. The one 
characteristic of the 1962 Cuban "quar- 
antine" which drew general approval 
from the world community of nations 
was its controlled and limited nature. 
And one view expressed with regard to 
the selection of the quarantine method 
in response to the Soviet challenge of 
that autumn remains valid today. Dis- 
cussing the President's reasoning on the 
selection of this action, Theodore 
Sorensen has said of the operation: 



190 



Whatever the balance of stra- 
tegic and ground forces ma) have 
been, tin* superiority of the 

American Navy was unquestioned; 

and this superiority was world- 
wide, should Soviet submarines 

retaliate elsewhere. 3 

\\ hat is proposed herein is simply 
that some form of sea operations against 
commerce be sanctioned despite the 
absence of a traditional condition of 
belligerency. If ever a traditional war 
erupts between the major antagonists of 
the modern world scene, the issue of 
neutral rights at sea will be academic 
even for the survivors. Some form of 
conflict seems to be a reasonable ex- 
pectation in the future as it even now 
exists in Southeast Asia, and, therefore, 
some provision should be made by the 
international community to regulate the 
application of seapower in such con- 
flicts. 

The most vociferous retort to this 
proposal may very well be based on its 
apparent suggestion that America 
abandon its traditional advocacy of 
"freedom of the seas," and so some 
brief observations are appropriate on 
that subject. 

Freedom of the seas, in the classic 
Wilsonian sense, means those rights 
which we believe have accrued to all 
states as a result of British policing of 
the oceans in the decades since Trafal- 
gar. The basic concept of freedom of 
the seas presupposes the dominance of a 
naval power so disposed as to make such 
freedom possible for itself and others. 
That Great Britain was such a power is 
borne out by study of naval history. As 
Bell remarks, "Great Britain was recog- 
nized to have protected the usages and 
customs of Europe [and consequently 
all of Western society] by her un- 
flinching resistance to the Napoleonic 
empire." 94 Now, with Britain eclipsed 
by modern U.S. naval power, the bur- 
den of protecting, exploiting, or re- 
futing those rights associated with the 
concept of "freedom of the seas" lies 



with the United States under the same 

grounds that they once devolved upon 
Britain. It is dearly the duty of such 
power to be exercised in defense of the 
concept when threatened by a power 
which might not act to preserve such 
freedom, but to hamper or destroy it. 
All states have recognized the need to 
accept restrictions on the usual freedom 
to use the sea when war has broken out 
hetween maritime states. Such restric- 
tions imposed in times of nominal peace 
would undoubtedly generate widespread 
outcry by the maritime states of the 
world, but historic experience indicates 
that under the pressing circumstances 
now at issue— for example, in Vietnam- 
such a move by the United States would 
not long be opposed by states having a 
sincere interest in preserving the 
freedom which we have long cham- 
pioned at sea. 

It is, therefore, proposed that the 
United States take the initiative in 
forcing the modification of the tradi- 
tional laws associated with the institu- 
tion of blockade: First, by a unilateral 
statement that the existing doctrine is 
inconsistent with the needs of modern 
society; and, second, by proposing ap- 
propriate modifications to the doctrine. 
Such action should be followed by the 
announcement of a naval "quarantine" 
of the port of Haiphong in North 
Vietnam, including the application of 
the Doctrine of Continuous Voyage to 
designated contraband at least to the 
British Crown Colony port of Hong 
Kong, where it has been observed that 
much of the Haiphong commerce "origi- 
nates." 96 Such action could be tied in 
with the recent and continuing efforts 
of the United States to secure peace in 
that area by: (1) announcing the naval 
quarantine to be a more humane sub- 
stitute for the aerial bombing campaign 
recently resumed; and (2) calling upon 
all states who have expressed dis- 
approval of the bombing action to join 
with the United States in carrying out 
the quarantine operation. 



191 



One precedent of the historical law 
of maritime warfare seems most applic- 
able even today, and that is the argu- 
ment in favor of exceptional measures 
being valid when states find themselves 
engaged in an "exceptional" struggle. 
Writing of the events at sea in 1689, 
Samuel Puffendorf acknowledged that 
powers engaged in defense of the religi- 
ous liberty of Europe were not required 
to observe ordinary rules of capture; 
again in 1792, it was claimed, with some 
justice, that "extraordinary rigours were 
justifiable against a regicide government 
[France], who were themselves con- 
temptuous of the law of nations." 97 



The United States is today engaged 
in an exceptional struggle for which 
there are few hard and fast rules. If we 
must act to set new precedents on the 
ground in the face of this need, we 
should equally act to set precedents on 
the seas. Both actions will stand to 
guide nations in the future. 

In the words of one commentator: 
United States naval power 
makes freedom of the seas pos- 
sible. During periods of bellig- 
erence, that freedom is subject to 
control. The bloody Ho Chi Minh 
trail is long and winding. It begins 

9 8 

at sea. 



NOTES 



1. Henry Ward Beecher, Life Thoughts. 

2. John Westlake, The Collected Papers of John Westlake on Public International Law 
(Cambridge, Eng.: Cambridge University Press, 1914), p. 325. 

3. Ibid., pp. 316-317. 

4. Lassa F. Oppenheim, International Law: Disputes, War and Neutrality, H; Lauterpacht, 
ed., 7th ed. (London: Longmans, 1952), v. II, pp. 768-769. 

5. Ibid., pp. 624-625. 

6. Such materials later came to be known as "contraband," and as such have often become 
confused with the concept of Blockade. 

7. Westlake, Collected Papers, p. 321. 

8. Some evidence exists that the idea was not original with the Dutch. See, Neutrality, Its 
History, Economics and Law: the Origins (New York: Columbia University Press, 1935), v. I, p. 
106. It is unquestioned that the Dutch made the greater contribution to the establishment of the 
doctrine, however. 

9. Westlake, Collected Papers, p. 325. 

10. John Westlake, International Law (Cambridge, Eng.: Cambridge University Press, 1907), 
pt II, p. 222. 

11. De Jure Belli ac Pacis, quoted in Westlake, Collected Papers, p. 324. See also Westlake, 
International Law, p. 222. 

12. Westlake points out that there is no inconsistency here, as the word itself, although 
coined in the original Dutch placaat nearly a half century earlier, was not commonly applied in 
the technical sense until a later date. (Collected Papers, p. 330) 

13. Westlake, Collec ted Papers, p. 326. 

14. Bynkershoek, Quaestiones juris publici, i, 11. Quoted in Westlake, Collected Papers, p. 
327. 

15. Westlake, Collec ted Papers, p. 327. See also Neutrality: Origins, pp. 111-112. 

16. Neutrality: Origins, p. 113 ff gives good account of reactions of maritime neutrals and 
treaty development 

17. Westlake, Collected Papers, p. 328. 

18. Ibid., pp. 330-331. 

19. Ibid., p. 332. 

20. Herbert W. Richmond, National Policy and Naval Strength, CVI to XX Century 
(London: Oxford University Press, 1923), p. 10. 

21. Neutrality: Origins, p. 82 ff. Summarizes the wars of the period and Britain's changing 
roles therein. 

22. Archibald C. Bell, A History of the Blockade of Germany, 1914-1918 (London: H.M. 
Stationery Off., 1937), p. 5. 

23. Alfred T. Mahan, The Influence of Sea Power upon the French Revolution and Empire, 
10th ed. (Boston: Little, Brown, 1898), v. II, p. 199. 



1<):2 

2 1. Grenvile to lord Auckland. Quoted In Neutrality : Today and Tomorrow (New York 
Cohimbui I niversit\ Press, 1936), \. IV, pp. 40-41. 
25. Westlake, Collected Ropers, p. 334 

26. IhnL, p. 335. 

27. Westlake, International Law, p. 230. 

28. Gretl Britain, lords of Appeal, decision iii the I asr of tin' Nancy, quoted in Westlake, 
liittTimtioiuil Law, p. 230 

_ >( ). James Stephen, M<ir in Disguise, 3d ed. (London: University of London Press, 1917), p. 
18. 

30. Carlton Savage, ed., Policy <>/' //ie United States toward Maritime Commerce in War 
(Washington: I .S. Govt Print Off., 1934), v. I, pp. 1-10. 

31 . Madison to Monroe, f> January 1 80 t. Reproduced in Savage, v. I, p. 246. 

32. Ibid., pp. 1 18-249. 

33. Richmond, p. II. 

\ I. Savage, v. 1, p. 1 18. 

35. VicstisOkey International Law t p. 128. 

36. Congress of Paris, "' \nnex to Protocol 23— Declaration." Reproduced in Savage, v. I, p. 
381. 

.17. letter from Mr. Cobden, M.P., to Henry Ash worth, Esq., 1862. Quoted in Westlake, 
Collected Papers, p. 357. 

38. For the colonial evolution of this principle, see Appendix I. The Doctrine had been 
previously applied to blockade in only one instance, during the Napoleonic Wars, but under 
highly specialized circumstances. 

39. Cass to Mason, 27 June 1859. Reproduced in Savage, v. I, pp. 402-412. 

40. See Savage, v. I, pp. 415-416 for complete text. 

41. The United States refusal was predicated on the outlawing of privateering, and the 
refusal of the Congress Powers to agree to forbid the confiscation of private property at sea 
belonging to belligerents. See Savage, v. I, p. 76 ff for diplomatic exchanges on subject. 

42. James R. Soley, The Blockade and the Cruisers (New York: Scribner, 1883), p. 27. 

43. Allen Westcott, ed., American Seapotver since 1775 (Philadelphia: Lippincott, 1952), p. 
109. 

44. Soley, p. 27. 

45. Ibid., p. 42. 

46. See Seward to C.F. Adams, 6 March 1862, quoted in Savage, v. I, p. 439. 

47. Soley, pp. 35-38, describes development of this trade. 

18. The Dolphin, 7 Fed. Cases 868. Quoted in Herbert W. Briggs, The Doctrine of 
Continuous Voyage (Baltimore: Johns Hopkins Press, 1926), p. 45. 

49. Quoted in Briggs, p. 54. 

50. Quoted in Savage, v. I, p. 466. 

51. The Stephan Hart and the Gertrude. Both ships held cargo for the same port as the 
Springbok, all of which was complementary in use and linked by common ownership. 

52. Briggs, p. 68. See also Lord Russell's comment of 20 February 1864, quoted in Briggs, 
p. 67. 

53. Notably Mr. L. Gessner, in Zur Reform des Kriegs-Seerechts (Berlin: 1875), quoted in 
Briggs, p. 68. 

54. Quoted in Briggs, pp. 78-79. (Emphasis in original) 

55. Arthur Cohen, The Declaration of London (London: Hodder and Stoughton, 1911), pp. 
6-9. 

56. See Instructions to the Delegates to the London Naval Conference of 1908-1909, dated 
21 November 1908. Quoted in full in Savage, v. I, pp. 521-524. 

57. See Savage, v. II, pp. 163-179 for complete text of the Declaration. Specifically, see arts. 
2, 19, and 30. 

58. Ibid., art J 8. 

59. A number of contemporary writings reflect the intensity of the controversy. See 
particularly T. Gibson Bowles, Sea Law and Sea Power (London: Murray, 1910); Norman D. 
Bentwich, The Declaration of London (London: Wilson, 1911); Thomas Baty, Britain and Sea 
Law (London: Bell, 1911); and Arthur Cohen, The Declaration of London (London: Hodder and 
Stoughton, 1911). 

60. Bell, p. 38. See also Marion C. Siney, The Allied Blockade of Germany, 1914-1916 (Ann 
Arbor: University of Michigan Press, 1957), p. 8 ff. 

61. Bell, p. 40. 

62. Edward K. Chatterton, The Big Blockade (London: Hurst and Blackett, 1932), p. 28. 



193 

63. Captain M.P.A. Hankey, RN, Naval Assistant Secretary, Committee of Imperial Defence, 
undated memorandum, extensively quoted in Bell, pp. 20-22. Note the emphasis on cutting off 
of raw materials; practically all such materials had been specifically exempted from capture by 
the Declaration. (See art. 28.) 

64. All definitive texts of International Law cited elsewhere herein set forth the discussion 
of the law of blockade in adjectival phrases such as "belligerent right," etc., and the subject is 
nowhere considered in any other context than as a portion of the law of war. 

65. See Oppenheim, v. II, pp. 144-149 for a representative view of the entire institution. 

66. Ibid., chap. II. 

67. Oppenheim, p. 771. See also, Charles C. Hyde, International Law, Chiefly as Interpreted 
and Applied by the United States, 2d ed. (Boston: Little, Brown, 1945), p. 2190. 

68. Declaration of London, art. 19. 

69. Ibid., art 21. 

70. See Instructions Governing Maritime Warfare, June 1 91 7 (Washington: U.S. Govt. Print. 
Off., 1918), pp. 16-17. 

71. See Hyde, v. Ill, pp. 2211-2212. 

72. Bell, p. 18. 

73. Philip C. Jessup, A Modern Law of Nations (New York: Macmillan, 1948), p. 1. 

74. Oliver J. Lissitzyn, International Law in a Divided World (New York: Carnegie 
Endowment for International Peace, 1963), p. 7. 

75. Georg Schwarzenberger, "The Impact of the East-West Rift on International Law," 
Grotius Society, Transactions (Longmans, Green, 1951), v. XXXVI, p. 232. 

76. F.I. Kozhevnikov. Quoted by Lissitzyn, p. 16. 

77. Articles 12 and 13. See complete text in Charles G. Fenwick, International Law, 4th ed. 
(New York: Appleton-Century-Crofts, 1965), appendix A. 

78. See Ruhl J. Bartlett, ed., The Record of American Diplomacy, 4th ed. (New York: 
Knopf, 1964), pp. 520-521. 

79. See Fenwick, appendix C. 

80. Fenwick, pp. 649-650. Also, under the "Uniting for Peace Resolution" of 1950, the 
General Assembly may act if the Council defaults on its obligation. 

81. Westlake, International Law, v. II, p. 2. (Emphasis added) 

82. Wolfgang G. Friedmann, The Changing Structure of International Law (New York: 
Columbia University Press, 1964), p. 271. 

83. Philip C. Jessup, "Should International Law Recognize an Intermediate Status between 
Peace and War?", American Journal of International Law, January 1954, pp. 98-103. 

84. Friedmann, p. 271. 

85. C.R. Huan, "La Flotte Marchande Sovietique," La Revue Maritime, August-September, 
1965, pp. 981-1004. 

86. Bell, chap. III. 

87. H.W. Malkin, "Blockade in Modern Conditions," British Yearbook of International Law, 
1922-1 923 (London: Frowde, 1923), pp. 87-88. 

88. Declaration of London, art. 19. See also Herbert A. Smith, The Law and Custom of the 
Sea, 2d ed. (New York: Praeger, 1950), p. 112. 

89. See Fenwick, p. 667 ff. 

90. Ibid., p. 727, p. 729 ff. 

91. Friedmann, p. 3. 

92. The New York Times, 26 October 1962, passim. 

93. Theodore C. Sorensen, Kennedy (New York: Harper & Row, 1965), p. 688. 

94. Bell, p. 4. 

95. Fenwick, p. 511. 

96. See Raymond Moley, "Blockade Saves Lives," Newsweek, 3 January 1966, p. 60. 

97. Bell, p. 5, paraphrases Puffendorf and an anonymous later writer. 

98. Raymond Moley, "Freedom of the Seas," Newsweek, 27 December 1965, p. 74. 



L94 

BIBLIOGRAPHY 

Bartlett, RuhlJ., ed. The Record of imerican Diplomacy, 4th ed, New York: Knopf, 
L964. 

Baty, rhomaB. Britain and Sea Law, London: Bell, 1911. 

Bell, Archibald C. A History of the Blockade of Germany . . . 1914-1918. London: 
H.M. Stationery Oft, 1937. 

Bentwich, Norman D. The Declaration of London. London: Wilson, 1911. 

Bowles, T. Gibson. Sea Imw and Sea Power. London: Murray, 1910. 

Brierly, James L. The Law of Nations. 4th ed. Oxford, Eng.: Clarendon Press, 1949. 

Briggs, Herbert W. The Doctrine of Continuous Voyage. Baltimore: Johns Hopkins 
Press, 1926. 

British Yearbook of International Law, 1922-1923. London: Frowde, 1922, v. III. 

Chatterton, Edward K. The Big Blockade. London: Hurst and Blackett, 1932. 

Cohen, Arthur. The Declaration of London. London: Hodder and Stoughton, 1911. 

Fenwick, Charles G. International Law. 4th ed. New York: Appleton-Century-Crofts, 
1965. 

Friedman, Wolfgang G. The Changing Structure of International Law. New York: 
Columbia University Press, 1964. 

Grotius Society. Transactions. London: Longmans, Green, 1951, v. XXXVI. 

Huan C.L. "La Flotte Marchande Sovietique." La Revue Maritime, August- 
September 1965, pp. 981-1004. 

Hyde, Charles C. International Law, Chiefly as Interpreted and Applied by the 
United States, 2d rev. ed. Boston: Little, Brown, 1945. 3 v. 

Jessup, Philip C. A Modern Law of Nations. New York: Macmillan, 1948. 

"Should International Law Recognize an Intermediate Status 

between Peace and War?' The American Journal of International Law, January 
1954, pp. 98-103. 

Lissitzyn, Oliver J. International Law in a Divided World. New York: Carnegie 
Endowment for International Peace, 1963. 

Mahan, Alfred T. The Influence of Sea Power upon the French Revolution and 
Empire. 10th ed. Boston: Little, Brown, 1898, v. II. 



195 

Moley, Raymond. "Blockade Saves Lives. " Newsweek, 3 January 1966, p. 60. 
"Freedom of the Seas." Newsweek, 27 December 1965, p. 74. 

Neutrality, Its History, Economics and Law: the Origins. New York: Columbia 
University Press, 1935. v. I. 

Neutrality, Its History, Economics and Law: Today and Tomorrow. New York: 
Columbia University Press, 1936. v. IV. 

Oppenheim, Lassa F. International Law: Disputes, War and Neutrality. 7th ed. 
London: Longmans, Green, 1952. v. II. 

Pares, Richard. Colonial Blockade and Neutral Rights, 1739-1763. Oxford, Eng.: 
Clarendon Press, 1938. 

Richmond, Herbert W. National Policy and Naval Strength, XVI to XX Century. 
London: Oxford University Press, 1923. 

Savage, Carlton, ed. Policy of the United States toward Maritime Commerce in War. 
Washington: U.S. Govt. Print. Off., 1934-1936. V. I, II. 

Siney, Marion C. The Allied Blockade of Germany, 1914-1916. Ann Arbor: 
University of Michigan Press, 1959. 

Smith, Herbert A. The Law and Custom of the Sea. 2d ed. New York: Praeger, 1950. 

Soley, James R. The Blockade and the Cruisers. New York: Scribner, 1883. 

Sorensen, Theodore C. Kennedy. New York: Harper & Row, 1965. 

Stephen, James. War in Disguise. 3d ed. London: University of London Press, 1917. 

Westcott, Allen F., ed. American Seapower since 1775. Philadelphia: Lippincott, 
1952. 

Westlake, John. The Collected Papers oflohn Westlake on Public International Law. 
Cambridge, Eng.: Cambridge University Press, 1914. 

.. International Law: War. Cambridge, Eng.: Cambridge University 



Press, 1907. pt II. 



L96 



APPENDIX 1 

TI1K RULE OF 1756 AND THE 
DOCTRINE OF CONTINUOUS VOYAGE 

European mercantilist doctrine in the L8th century asserted that colonies 
existed onk to suppl\ tin- mother country with raw materials and to provide 
a market lor the processed goods ol the homeland. In Britain, to prevent 
encroachment by outsiders in this profitable two-way trade, a series of laws 
had hem enacted to deprive outsiders of participation in colonial trade, in 
part h\ requiring that all such trade be carried on in ships of the British flag. 
Prance and others had similar regulations for the trade of their colonies. 
When war broke out among the colonial powers, as it frequently did, 
belligerent flag ships and their cargoes became lawful prize. Under such 
circumstances, how was the mother country to continue to supply and be 
supplied by her overseas colonies? 

The answer, of course, was to carry on colonial trade using neutral flag 
bottoms; but the right of neutral ships to carry enemy goods was itself a 
source of heated controversy among maritime powers, and even more so 
when belligerents employed neutral ships only to carry on colonial trade 
without enduring the risk of confiscation associated with their own flag. 

To confound this practice, British prize courts evolved what became 
known as the Rule of the War, 1756, under which neutrals were prohibited, 
by confiscation if intercepted, from participating in colonial trade in war if 
such trade were denied them in peace by the laws of the mother country. 2 

Hoping to evade this rule, neutrals and belligerent shippers conspired to 
make the colonial voyages in two distinct stages, the first from the colony to 
a neutral port, and the second from that port to the mother country. 
Fictitious transfers of ownership and actual or simulated transshipment of the 
cargo while in the interim port were often resorted to in order to disguise the 
true character of the voyage from intercepting cruisers. This practice 
permitted them to claim that captures made during either segment of the 
voyage were illegal, since neutral trade to and from neutral ports was always 
allowed. 

The prize courts responded with the development of the Doctrine of 
Continuous Voyage under which cargoes were condemned at any stage in the 
voyage, disregarding paper transfers and transshipments as "a fraudulent 
contrivance merely on account of the war to continue the original voyage and 
cover the goods of the enemy to their destined port." 3 

For a general summary, see Richard Pares, Colonial Blockade and Neutral Rights, 
17391 763 (Oxford, Eng.: Clarendon Press, 1938), p. 169. The controversy on neutral 
rights stemmed from a fundamental difference between Continental and British jurists 
on the sources and character of international law. Pares (pp. 148-162) disagrees with 
other authorities who assert that the issues were resolved before this time. See 
Neutrality: the Origins, v. I., p. 247. 

2 Pares, pp. 180-204. See also Neutrality: the Origins, p. 153, where they describe the 
Rule as "one of the clearest examples of the economic basis of the law of neutral and 
belligerent rights. It was a measure adapted ... to meet a definite economic problem." 

3 Decision in the case of the ship Young Gertruyde Adriane, June 1764. Quoted in 
Pares, p. 221. 



197 



PACIFIC BLOCKADE: 



A LOST OPPORTUNITY OF THE 1930S? 



Walter R. Thomas 



It seems to be unfortunately 
true that the epidemic of world 
lawlessness is spreading. When an 
epidemic of physical disease starts 
to spread, the community ap- 
proves and joins in a quarantine in 
order to protect the health of the 
community against the spread of 
the disease. 1 

Although President Franklin D. 
Roosevelt's quarantine address, which 
was delivered in Chicago on 5 October 
1937, failed to outline any detailed 
national or international program which 
would deter potential aggressors, this 
particular speech was at least a frank 
and open invitation to military and 
political leaders at home and abroad to 
reappraise the tenets of isolationism and 
appeasement which had become im- 
bedded in the basic structure of their 
nations' foreign policies. Perhaps the 
President was not individually ready to 
initiate or direct an international pro- 
gram of collective action but, by 1937, 
he was becoming obviously un- 
comfortable within the confines of the 
Neutrality Acts where, to some extent, 
he had placed himself and the country. 
Japan's earlier refusal to abide by her 
naval limitations and the gradual col- 
lapse of the League of Nations, together 
with the years of creeping conflicts up 
to 1937, had a profound and dis- 
couraging effect upon that Kellogg- 
Briand world which had been assured, 



with engaging naivety, that war was 
outlawed. It was also becoming ap- 
parent that the United States could not 
really snuggle under a blanket of isola- 
tion and tuck out the international 
community. The President, therefore, 
was leaning toward closer ties with 
peaceful nations— but the American 
public was not ready. 

Isolationists, pacifists, protectionists, 
and internationalists of every hue ex- 
amined the body of the President's 
speech and found, according to their 
bent, some reason to reject it. Spectres 
of embargoes, sanctions, boycotts, for- 
eign entanglements, neutrality viola- 
tions, and the abandonment of the 
Monroe Doctrine stalked across the 
pages of America's newspapers and 
periodicals. These critics continued to 
haunt the President until, with dis- 
couraging finality, the abortive Brussels' 
Conference of late 1937 disclosed that 
unity of effort was an unstable com- 
modity in both the domestic and the 
international market. 

This germ of isolation, which had 
infected the country since World War I, 
had not altogether spared the officers of 
the United States Navy, even as late as 
1937. One wrote: 

The New World with the sup- 
port of the United States is 
completely self-sufficient and im- 
pregnable to almost any type of 
attack. The United States and the 



L98 



\( w World remain intact in the 
face <>i potential world destruc- 
tion. 



Collective Blockades. Uthough man) 
couraei of positive action could have 

been effected under the President's 
"quarantine banner, there is an obvi- 

0U9 facet of naval involvement which is 
particular!) noticeable by its absence. 
The concept of collective pacific block- 
ade-, which had been formerly cm- 
ployed with some BUCCeSS, was not 
considered a.- a possible ocean strate<:\ 
against anjzressors between 1935 and 
1939. Was this because of international 
reluctance, military inability, illegality 
(under international law), or a genuine 
failure to review the operational prac- 
ticality of suppressing aggression 
through limited confrontation on the 
high seas? 

As a precedent for action there had 
been about 20 collective pacific block- 
ade cases effectively recorded before 
World War II. In 1827 Russia, France, 
and Great Britain, acting in concert, 
blockaded the Morea to prevent the 
Turkish fleet from coming out of Nava- 
rino during one of the many Turkish- 
Greek disputes. Again, in 1833, the 
French and British forces blockaded the 
Netherlands until the Dutch carried out 
an 1831 treaty which provided for the 
independence of Belgium. 

From 1845-1850 the French and the 
British blockaded Uruguay to cut off 
Argentine supplies to the Oribe forces; 
and in 1897 Britain, France, Austria, 
Germany, Italy, and Russia blockaded 
Crete to prevent other nations from 
delivering weapons to Greek insurgents. 
These collective blockades were both 
pacific and effective and demonstrated 
how combined naval action could create 
stability within an area. 3 

The League of Nations also could 
have directed a collective pacific block- 
ade based on its covenant and the 
principle that "any state or states may 
blockade the coasts and ports of an- 



other state in time ol peace to coerce 
the latter into acting in accordance with 
the wishes of the blockading state or 

Btates. 

Great Britain and the United State 
lor example, had recently acquiesced to 

this legal gambit when Japan set up a 
"pacific blockade on 25 August 1937 of 
the territory between the mouth of the 
Yangtze and Swatow lor all Chinese 
vessels and nonpeaceful cargo of third 
states." 5 

By the spring of 1938, then, the 
international legality of collective 
pacific blockades was generally un- 
questioned; the naval forces of the 
nonaggressor members of the League of 
Nations, together with the United States 
Navy, was superior to the collective 
navies of Japan, Germany and Italy; the 
violation of the Versailles Treaty and 
the Kellogg-Briand Pact provided 
sufficient aggravation for all other sig- 
natories to demand a cessation of 
hostile acts; and the world seemed 
ready, if not really eager, to listen to 
advocates of containment. It is there- 
fore surprising that naval officers and 
seapower savants— including President 
Roosevelt and Mr. Churchill— did not at 
least gravitate toward the advantages of 
using their combined naval forces as a 
threat against the greedy nations, par- 
ticularly since the success of collective 
pacific blockades had been well docu- 
mented. 

Enforcement and Theory. Ad- 
mittedly the use of blockade as a 
weapon is hazardous for it can be as 
easily pointed in error toward the 
saintly as in honor toward the sinful. 
There are, nevertheless, certain singular 
advantages in using pacific blockades: 

1. Pressure can be applied on actual 
or potential aggressors away from terri- 
torial boundaries by warships of the 
blockading states. 

2. Economic restrictions are effected 
without directly involving the native 
populace in conflict. 



199 



3. Military units can be maintained 
in nonsovereign waters. 

4. International decisions may gravi- 
tate toward areas less combatant in 
nature than war. 

5. The alternate avenues of arbitra- 
tion, mediation, and conciliation can be 
thoroughly explored before war be- 
comes inevitable. 

The theory of pacific blockade also 
has exceptional attraction. It is usually 
bloodless, which appeals to the humane; 
it is done with a minimum of military 
force, which entices economists and 
politicians; and it is imposed on the sea, 
away from the territory of the offend- 
ing state, which results in an irresistible 
charm for statesmen and naval advo- 
cates. Admiral Powers has written: 

Although it has been stated 
that unilateral pacific blockade is 
no longer permissible for an indi- 
vidual member of the United 
Nations, the possibility of one 
should not be dismissed. A uni- 
lateral declaration of pacific 
blockade which was stated to be 
in the interest of world peace, 
which was justified by the action 
of the nation blockaded, and 
which was accepted by the world, 
should be upheld. 6 

By 1937, a similar posture of en- 
forcement which did not directly 
threaten the political structure of an- 
other nation nor intrude upon its sover- 
eignty with armed forces may have been 
the only rational answer to overt aggres- 
sors. 

No attempt has been made to charge, 
in retrospect, that American leaders or 
naval officers were delinquent in not 
publicly proposing that collective pa- 
cific blockades were a panacea for early 
Axis aggressions. Neither is there a 
directed verdict that collective pacific 
blockades could have been successfully 
effected or that their initiation would 
have thwarted or delayed the ambitious 
designs of Italy, Germany, or Japan. It 
is merely that the lack of naval 



affiliation with quarantine bears scru- 
tiny, not only because of the natural 
affinity between naval power and for- 
eign relations, but because writers, both 
then and now, have neglected to advo- 
cate the possibility of using seapower 
and collective pacific blockades as an 
obstacle to expansionist movements. 

Navy Posture in the 1930's. The 
primary interests of the United States 
Navy in the 1930's were in the funding 
of a badly needed shipbuilding and 
research program and in the tactical 
training and operational readiness of its 
officers and men against possible future 
adversaries. 

If the United States Navy had been 
modernized and brought to the parity 
limits allowed by the Washington and 
London Conferences, perhaps her sea 
supremacy over all other nations, except 
Great Britain, would have encouraged 
adventures in power ploys abroad. At 
least, such leadership would have issued 
a temptation to use this force in interna- 
tional discussions by 1937— despite the 
isolationist sentiment that might have 
refused to sanction its actual applica- 
tion. Unfortunately, the American Fleet 
was approximately 65 percent of treaty 
strength at this time, while the Japanese 
Fleet approached 95 percent; and, even 
when marines were being sent to Shang- 
hai in August 1937, the Asiatic Fleet 
was only a modest force. It was not 
until after Great Britain entered World 
War II that President Roosevelt asked 
Congress to expand the Navy beyond 
the old treaty limits or to beef up the 
island outposts in the Pacific. 

The pretense of naval superiority 
through ceiling limitations had, in 
reality, severely handicapped the United 
States. The Navy had neither the ships 
nor men to enforce a unilateral pacific 
blockade against Italy in 1935, and it 
was even less capable of effecting such 
action against Japan by 1937. 

There were, however, adequate 
grounds for proposing that the Presi- 



200 



<ltrit f quarantine might be translated 

into the formidable posture o( collective 

pacific blockades. While such a plan 
would have been more effective il it had 
been initiated against Italy in I ( )35, 

continued against Germany in 1936, 
and used in its third phase against Japan 

in l ( ).'i7, there was still an opportunity 
lor a forthright combined naval program 
in early 1938 if future European allies 
had joined the United States in a rela- 
tively moderate confrontation of the 
three major aggressors before Munich. 

It is easy to discard moderate sea- 
power proposals as futile because they 
could not have altered the inevitable 
course of history. By 1937, for ex- 
ample, the Nine Power Treaty had 
crumbled, initial aggression had been 
tolerated, and the U.S. Neutrality Acts 
were a stern reality; but the leaders of 
many nations seem to have been 
awakening to the need for action, even 
if they were divided or completely 
unaware of how their efforts could be 
directed. 

The imposition of collective pacific 
blockades, therefore, still might have 
been a valuable strategy as a response to 
the President's quarantine quandary. It 
would have required delicate diplomacy, 
a strong legal position within the re- 
straints of international law, coordi- 
nated naval tactics, and exceptional 
leadership by the heads of nations who 
contributed unit support. Perhaps these 
elements could have led public opinion 
into the peace offensive toward which 



President Roosevelt dedicated his later 
efforts. 

An examination of combined allied 
naval strengths and the suitability of 
collective naval blockades indicates that 
the formulation of a combined sea- 
power posture would have been one 
practical application of quarantine 
under international law— though cer- 
tainly not the ordy possible bulwark to 
the cupidity of the Axis leaders from 
1935 to 1939. 

However, after Great Britain deter- 
mined to recognize Italy's conquest of 
Ethiopia and Hitler occupied Austria, 
there was no longer a major detour 
around Munich. No leaders sincerely 
desired to ratify aggression, but neither 
did they wish to embrace conflict. 
Collective action, while contemplated, 
never became a matter of active military 
involvement. Pacific blockades, while 
logical, were not equated with quaran- 
tine by naval or civilian scholars. The 
fleeting opportunity to test quarantine 
as a deterrent to aggression passed 
over the heads of seapower advocates 
from October 1937 until October 
1962. 

Since establishment of the United 
Nations, claims coercively to blockade 
are to be measured against the require- 
ments of self-defense, enforcement 
action by regional arrangements, or 
police action by the organized com- 
munity. The position of quarantine, 
however, as a collective pacific block- 
ade, still remains nebulous. 



NOTES 



1. Franklin D. Roosevelt, The Public Papers and Addresses of Franklin D. Roosevelt 
(London: Macmillan, 1941), VI, p. 410. 

2. Howard Gray Bronson, "Sea Power and World Peace," United States Naval Institute 
Proceedings, December 1937, p. 1697. 

3. Neill H. Alford, Jr., "The Cuban Quarantine of 1962: an Inquiry into Paradox and 
Persuasion," Virginia Journal of International Law, January 1964, pp. 37-73. 

4. Alfred E. Hogan, Pacific Blockade (Oxford: Clarendon Press, 1904), p. 70. 

5. Payson Sibley Wild, International Law Situations 1938 (Washington: U.S. Govt. Print. 
Off., 1940), pp. 58-59. 

6. Robert D. Powers, Jr., "Blockade: for Winning without Killing," United States Naval 
Institute Proceedings, August 1958, p. 66. 

.y _ 



201 



COMBAT RESTRAINTS 



Howard S. Levie 



Combat restraints fall into two sepa- 
rate and distinct categories: (1) Re- 
straints on the use of particular weap- 
ons, such as the prohibitions on the use 
of dumdum bullets and poison gas; and 
(2) restraints on the actions that may be 
taken during the course of combat, such 
as the prohibitions on the denial of 
quarter and on the shooting of civilian 
noncombatants. The discussion which 
follows will be concerned solely with 
this latter type of restraints on permis- 
sible combat actions. 

Most of these restraints, of both 
categories, have their origin in custom 
which has evolved over long periods of 
time. Many of these customs have been 
codified, primarily at The Hague in 
1899 1 and 1907 2 and at Geneva in 
1929 3 and 1949. 4 However, they have 
not all been codified and, accordingly, 
there are still some rules for which we 



must have recourse to custom. At the 
first successful codification in 1899, in 
order to leave no doubt in this respect, 
it was agreed that the preamble of the 
convention being drafted should include 
a provision (which has become known 
as the de Martens Clause, after its au- 
thor) to the effect that apart from the 
rules codified in the Regulations then 
being adopted, "populations and 
belligerents remain under the protection 
and empire of the principles of interna- 
tional law, as they result from the 
usages established between civilized 
nations, from the laws of humanity, and 
the requirements of the public con- 
science." 5 

There are, of course, a very large 
number of restraints on the actions that 
may be taken during the course of 
combat. The four specific areas of com- 
bat restraints which will be discussed 



202 



are: (1) Military necessity; (2) reprisals; 
(3) protection of civilian noncombat- 
ants; and (4) protection of prisoners of 
war. 

Military Necessity. Inasmuch as this 
doctrine is really an excuse for non- 
compliance with combat restraints, its 
importance as an introduction to any 
discussion of such restraints is obvious. 
Over 100 years ago, in 1863, Francis 
Lieber defined this term as follows: 
"Military necessity, as understood by 
modern civilized nations, consists in the 
necessity of those measures which are 
indispensable for securing the ends of 
the war, and which are lawful according 
to the modern law and usages of war." 6 
(Emphasis added.) Note that the last 
clause requires that all actions taken 
because of military necessity must be 
lawful actions. Contrary to the fore- 
going, The German War Book, published 
early in this century, adopted the doc- 
trine of "Kriegsraeson," which is, in 
effect, the doctrine that the end justifies 
the means: "Humanitarian claims such 
as the protection of men and their 
goods can only be taken into considera- 
tion insofar as the nature of the war 
permits." 7 That this was the Nazi policy 
during World War II is indicated by the 
following statement found in the 
opinion of the International Military 
Tribunal: 

There can be no doubt that the 
majority of [the war crimes com- 
mitted during World War II by the 
Germans] arose from the Nazi 
conception of "total war," with 
which the aggressive wars were 
waged. For in this conception of 
"total war," the moral ideas 
underlying the conventions which 
seek to make war more humane 
are no longer regarded as having 
force or validity. Everything is 
made subordinate to the over- 
mastering dictates of war. 8 
U.S. military doctrine has not 
changed during the period of more than 



a century since Lieber formulated it in 
1863. The present U.S. Army Manual 
states that military necessity "justifies 
those measures not forbidden by inter- 
national law which are indispensable for 
securing the complete submission of the 
enemy as soon as possible." 9 (Emphasis 
added.) It goes on to call attention to 
the fact that "military necessity has 
been generally rejected as a defense for 
acts forbidden by the customary and 
conventional laws of war inasmuch as 
the latter have been developed and 
framed with consideration for the con- 
cept of military necessity." The British 
Army Manual is substantially to the 
same effect. 10 

The subject of military necessity as a 
defense for illegal combat actions was 
considered in a number of war crimes 
cases after World War II. Attention has 
already been invited to the statement of 
the International Military Tribunal. In 
the case of United States v. Krupp, the 
U.S. Military Tribunal said: 

In short , these rules and cus- 
toms of warfare are designed 
specifically for all phases of war. 
They comprise the law for such 
emergency. To claim that they 
can be wantonly -and at the sole 
discretion of any one belligerent - 
disregarded when he considers his 
own situation to be critical means 
nothing more or less than to 
abrogate the laws and customs of 
war entirely. 1 1 

Similarly, in United States v. List, an- 
other U.S. Military Tribunal held: 

Military necessity permits a bel- 
ligerent, subject to the laws of 
war, to apply any amount and 
kind of force to compel the com- 
plete submission of the enemy 
with the least possible expendi- 
ture of time, life and money. . . . 
The rules of international law 
must be followed even if it results 
in the loss of a battle or even a 
war. " l 2 (Emphasis added.) 



203 



As a practical matter, there are still 
many who would agree with the impli- 
cations of Bismarck's query: "What 
head of government would allow his 
state and its citizenry to be conquered 
by another state just because of interna- 
tional law?" 1 3 While this may appear to 
put the problem at the civilian political 
level and to remove responsibility from 
the military commander, that is not 
always true. In any event, it must be 
borne in mind that when a chief of state 
decides that military necessity requires 
the violation of affirmative rules of the 
law of armed conflict he will not there- 
after be held accountable alone: Those 
who pass down or execute his illegal 
orders in this respect may likewise be 
adjudged war criminals. 14 It might also 
be noted that, prior to the advent of the 
nuclear age (and, perhaps, even since 
that event), it was rare, indeed, that the 
illegal application of the rule of military 
necessity would make the difference 
between victory and defeat. 

Now let us attempt to apply the 
restrictions on the doctrine of military 
necessity to specific factual situations. 

The law of armed conflict specifi- 
cally protects prisoners of war from 
maltreatment. For example, an armored 
unit has just captured a large number of 
prisoners of war. It receives urgent 
orders to move forward to participate in 
an attack which is taking place some 
miles away. What does it do with its 
prisoners of war? It cannot take them 
along. It has no personnel available to 
guard them and no facilities for sending 
them to the rear. Does military neces- 
sity permit the shooting of these POWs? 
No. The rule protecting them from 
maltreatment, including death, was 
drafted and adopted with full knowl- 
edge of the existence of the doctrine of 
military necessity and overrides it in- 
sofar as the treatment of prisoners of 
war is concerned. To shoot them would 
violate an affirmative rule of the law of 
armed conflict and the participants in 
such an episode would be guilty of 



having committed a war crime. (A num- 
ber of the individuals responsible for an 
incident of this nature at Malme'dy, 15 
including SS Colonel Joachim Peiper, 
were convicted of war crimes and sen- 
tenced to death. 16 While they were not 
executed, they spent 13 years in jail— 
and in July 1976, Peiper while living in 
the South of France was assassinated by 
revenge seekers. 17 The massacre of 
Poles in the Katyn Woods 1 8 may have 
been of the same nature. So also was 
Napoleon's massacre of more than 
3,500 Arabs in Jaffa in 1799. 1 9 ) 

The law of armed conflict now spe- 
cifically prohibits the taking of civilians 
as hostages. In another example, resis- 
tance groups in the rear are destroying 
railroad tracks, blowing up trains, and 
ambushing truck routes, thus critically 
interfering with essential supply of 
troops in combat. The local commander 
orders the random taking of civilian 
hostages, some to be carried in the 
trains and trucks being attacked, and 
others to be executed at the ratio of 10 
civilian hostages for each soldier of his 
command who is killed by the irregu- 
lars. Is this order legal? No. The rule 
prohibiting the taking of civilian 
hostages was drafted and adopted with 
full knowledge of the existence of the 
doctrine of military necessity and over- 
rides it insofar as the use of hostages is 
concerned. To take hostages in the 
manner and for the purposes indicated 
would violate an affirmative rule of the 
law of armed conflict and the partici- 
pants in such an episode would be guilty 
of having committed a war crime. 20 

Reprisals. Reprisals are acts of re- 
taliation, in the form of conduct which 
would otherwise be illegal, committed 
by one side in an armed conflict in 
order to put pressure on the other side 
to compel it to abandon a course of 
illegal action which it has been follow- 
ing and to return to compliance with 
the law of armed conflict. 

It has sometimes been argued that 



20 1 



reprisals lead, not to redress of the 
wrong previously committed, but to 
new breaches. Nations have, in theory, 
admitted this to be a fact by agreeing to 
prohibit reprisals against various cate- 
gories of protected persons and even 
against certain categories of property. 
Nevertheless, reprisals do still remain a 
possibility, however limited, under the 
law of armed conflict. Sometimes they 
are the only measure available to a 
belligerent in its attempt to secure 
compliance with the law of armed con- 
flict by its adversary. 

There are at least seven matters to be 
considered with respect to reprisals: 

1. The enemy must have committed 
an act which violates the law of armed 
conflict. (It could be argued that the act 
must also either be a continuing one or 
that the enemy has indicated that it will 
take the same action in the future when 
the occasion arises.) 

2. Reprisals must not be used until 
appropriate efforts to secure compliance 
with the particular law of armed con- 
flict being violated by the enemy have 
been attempted and have been unsuc- 
cessful. 

3. Reprisals should be used only 
upon the orders of a high military 
commander. Since the use of reprisals 
will rarely remain localized, the supreme 
commander or even the civilian govern- 
ment, should normally be made aware 
of and approve the use of reprisals 
before they are actually undertaken. 

4. Reprisals may only be directed 
against enemy personnel who, and 
property which, are not within any 
provision excluding them as the targets 
of reprisals. For example, enemy hospi- 
tals may not legally be the targets of 
reprisals as they are specifically pro- 
tected against attack. 2 l Similarly, civil- 
ian noncombatants 2 2 and prisoners of 
war 2 3 may not legally be the targets of 
reprisals as they are protected from 
reprisals by specific prohibitions con- 
tained in the relevant 1949 Geneva 
Conventions. In effect, this really means 



that reprisals may only be directed 
against enemy combatants and against 
enemy property not protected by a 
specific rule of the law of armed con- 
flict. 

5. Reprisals must be roughly propor- 
tional to the enemy's original illegal act. 
Of course, it will frequently not be 
possible to give an exact quantitative 
value to the enemy's illegal act-but it 
will usually be possible to approximate 
that value within reasonable bounds. 
For example, when, during World War 
II, the Nazis adopted a reprisal policy of 
10 to 1, and even 100 to 1, there could 
be no question but that they were 
violating the rule of proportionality. 24 
Similarly, the action taken at Lidice was 
a reprisal which outrageously violated 
the rule of proportionality. 25 But when 
the enemy intentionally bombs a hospi- 
tal there can only be a commonsense 
gauge of proportionality. 

6. Reprisals need not necessarily be 
of the same nature as the original illegal 
act. For example, the reprisal response 
to maltreatment of prisoners of war by 
the enemy need not, in fact it may not, 
be maltreatment of prisoners of war by 
the other side. 

7. While relatively little has been 
written on the subject, it appears that 
the very nature and purpose of reprisals 
require that they be directed against the 
state whose personnel committed the 
alleged violation of the law of armed 
conflict and not against an ally of that 



state 



26 



Here are some specific cases of re- 
prisals which have occurred in the past. 

During the American Civil War there 
was no rule of the law of war protecting 
prisoners of war against being the tar- 
gets of reprisals. A Union commander 
(Custer) executed six members of a 
Confederate irregular cavalry unit on 
the basis that they were bandits, not 
soldiers. The Confederate commander 
(Mosby) executed five Union prisoners 
of war as a reprisal. That ended the 
episode, the irregulars captured there- 



205 



after were treated as prisoners of war. 2 7 
Reprisals worked in this instance. 

During World War II, in 1942 at 
Dieppe and at Sark, Canadian and 
British commandos tied the hands of 
their German prisoners of war together 
in order to prevent them from destroy- 
ing documents having intelligence value. 
The Germans captured a copy of the 
order containing instructions in this 
regard and promptly responded by 
handcuffing 1,000 British and Canadian 
inmates of prisoner-of-war camps for 1 2 
hours a day. The British, apparently 
contending that their action had not 
been a violation of the law of armed 
conflict but that the German action 
was, responded by handcuffing a large 
number of German prisoners of war. 
Although the British abandoned the use 
of shackles after a few months, the 
Germans continued the practice for 
another year. 28 Both alleged reprisals 
were, of course, violations of the pro- 
hibition on reprisals against prisoners of 
war. 

During 1965 a member of the Viet- 
cong was tried and convicted of acts of 
terrorism by a court of the Republic of 
Vietnam and he was executed. Three 
days later the Vietcong announced the 
reprisal execution of an American 
prisoner of war. Shortly thereafter three 
members of the Vietcong were tried and 
convicted for acts of terrorism by an- 
other court of the Republic of Vietnam 
and were executed. A few days later the 
Vietcong announced the reprisal execu- 
tion of two American prisoners of 
war. 29 Apart from the fact that these 
alleged reprisals by the Vietcong vio- 
lated the specific prohibition against 
making prisoners of war the targets of 
reprisals (the Vietcong claimed not to 
be bound by the humanitarian conven- 
tions), it should be noted that it was the 
Republic of Vietnam, not the United 
States, which had committed the acts 
against which the reprisals were di- 
rected. The Vietcong were, in effect, 
executing American prisoners of war in 



order to apply pressure on the Republic 
of Vietnam. In this case the indirect 
pressure apparently accomplished its 
purpose as Vietcong terrorists subse- 
quently convicted and sentenced to 
death were not executed. 

Protection of Civilian Noncombat- 
ants. During the early years of recorded 
history, such as that contained in the 
Bible, no distinction was made between 
combatants and noncombatants, and all 
were usually put to the sword or en- 
slaved. But by the late Middle Ages, 
before the days of professional armies 
and rampant nationalism, apart from 
the sieges of cities, war could more or 
less pass the civilian noncombatant by, 
leaving him physically untouched. 
Changes in this respect began to appear 
in the 17th century and a rather radical 
transformation had occurred by the 
beginning of the 19th century, particu- 
larly during the Napoleonic wars. While 
the 1899 and 1907 Hague Regula- 
tions 3 ° included some combat restraints 
on actions directed against civilian non- 
combatants, such as a prohibition 
against the bombardment of un- 
defended cities, a prohibition against 
the use of coercion to obtain military 
information, and the granting of a pro- 
tected status to members of the levee en 
masse, there were really few rules pro- 
tecting civilian noncombatants from 
being intentionally made the targets of 
combat actions. Even the 1949 Geneva 
Civilians Convention, 31 revolutionary in 
concept as it was, contains surprisingly 
few provisions that can be considered as 
protecting the civilian noncombatant 
from combat actions. It is true that this 
Convention prohibits belligerents from 
using civilians to render an area immune 
from attack; prohibits the use of civil- 
ians as the objects of reprisals; and 
prohibits the use of civilians as hostages. 
But when one has completed that short 
list one has just about covered all of the 
protection of civilians against combat 
actions contained in the 159 articles 



206 



of the 1949 Geneva Civilians Conven- 
tion. 

Efforts are currently being made to 
remedy this situation. The Diplomatic 
Conference on the Reaffirmation and 
Development of International Humani- 
tarian Law Applicable in Armed Con- 
flicts, which has already convened on 
three separate occasions and which is 
expected to complete its work during 
1977, has tentatively adopted a number 
of articles for the protection of civilians 
from combat activities, most of which 
can be expected to be a part of the 
Protocol finally approved. One such 
article (Article 46, adopted in commit- 
tee by consensus) 32 provides that "civil- 
ians shall enjoy general protection 
against dangers arising from military 
operations." It then goes on to enumer- 
ate a number of specific protections: 

• Prohibition against making civil- 
ians the objects of an attack. 

• Prohibition against acts or threats 
of violence intended to spread terror 
among the civilian population. 

• Prohibition against indiscriminate 
attacks. These attacks are defined as 
those which have no specific military 
objective; or those which employ a 
method or means of attack which can- 
not be directed at a specific military 
objective, or the effect of which cannot 
be limited to that objective. Examples 
of indiscriminate attacks are area 
bombardments where the area so bom- 
barded contains a concentration of 
civilians; and attacks which would cause 
loss of civilian lives in a number which 
would be excessive in the light of the 
"concrete and direct military advantage 
anticipated." 

• Prohibition against attacks against 
civilians by way of reprisals. 

• Prohibition against the use of 
civilians to render a location immune 
from military operations, including the 
movement of civilians to shield military 
objectives or military operations. 

A number of other articles of the 
Protocol which have been tentatively 



approved would also afford protection 
to civilians against combat activities. 
Thus, Article 48 (adopted in committee 
by consensus) 3 3 forbids military attacks 
on "objects indispensable to the survival 
of the civilian population," such as 
foodstuffs, food-producing areas, crops, 
livestock, drinking water, etc. This pro- 
hibition is applicable whether the 
motive for the attack is "to starve out 
civilians, to cause them to move away, 
or any other motive." Again, Article 50 
(adopted in committee by a vote of 
66-0-3) 34 and Article 51 (adopted in 
committee by consensus) 35 require the 
commander of an attacking force to 
take certain precautions intended to 
protect the local civilian population 
before the attack is actually launched. 
These articles of the Protocol to the 
1949 Geneva Conventions which is in 
process of preparation are but a few 
examples of what the Diplomatic Con- 
ference hopes to accomplish towards 
the goal of better protecting civilian 
noncombatants from the effects of com- 
bat actions. Unfortunately, when one 
has had the opportunity to read and 
analyze them, one cannot avoid the 
feeling that a number of them are so 
impractical that it will be extremely 
difficult, if not impossible, for even the 
most law-abiding commander to comply 
with them fully. This is regrettable as it 
means that there will be a limited 
number of ratifications and many 
valuable and acceptable provisions will 
be lost; or there will be ratifications but 
no compliance. 

Prisoners of War. The 1949 Geneva 



36 



IS 



Prisoner of War Convention 
probably the most complete single code 
contained in the law of armed conflict. 
Since its drafting and acceptance by the 
vast majority of the nations which 
constitute the present-day world com- 
munity, there has been available for the 
guidance of nations at war a substantial 
and pervasive body of law on this 
subject. 



207 



We are here concerned, of course, 
only with those aspects of this Conven- 
tion which relate to the protection of 
prisoners of war by restraints on com- 
bat. Understandably, there are only a 
few provisions of the Prisoner of War 
Convention which may be deemed to 
fall within this category. Thus, prisoners 
of war are to be evacuated from the 
combat zone as soon as possible after 
capture and are not to be unnecessarily 
exposed to danger while awaiting such 
evacuation (Article 19); the evacuation 
is to be accomplished in as humane a 
manner as possible (Article 20); the 
capturing troops are prohibited from 
taking anything from the prisoners of 
war except arms, military equipment, 
and military documents (Article 18); 
prisoners of war may not be sent to, or 
detained in, areas where they will be 
exposed to the dangers of the combat 
zone, nor may they be used to render an 
area immune from attack (Article 23); 
and prisoner-of-war camps are to be 
marked so that they can be identified 
by an attacking force (Article 23). Of 
course, as has already been noted in the 
discussion of military necessity, the 
protection against maltreatment con- 



tained in the Convention includes a 
positive ban on shooting them even 
though the combat force which captures 
them does not have the facilities for 
their evacuation. 37 In fact, the willful 
killing of prisoners of war is a grave 
breach of the Convention and calls for 
penal sanctions against the offenders. 38 
They cannot avoid this responsibility by 
refusing quarter and thus contending 
that the individuals killed were never 
prisoners of war, since Article 23(d) of 
the 1907 Hague Regulations 39 specifi- 
cally bans any declaration that no 
quarter will be given. 

The foregoing is a rather summary 
treatment of four very important areas 
of the law of armed conflict dealing 
with combat restraints. However, it 
should demonstrate beyond dispute 
that, paradoxical as it may seem, 
civilization has evolved many humani- 
tarian rules calling for such conflict to 
be conducted in a manner calculated to 
reduce unnecessary suffering and to 
provide a maximum of protection for 
the victims thereof, combatant and non- 
combatant. The problem in this area, as 
in many other areas, is not lack of law, 
it is lack of compliance with the law. 



NOTES 



1. Hague Convention No. II Concerning the Laws and Customs of War on Land of July 29, 
1899 (with annexed Regulations), 32 Stat. 1803; Naval War College, International Law 
Documents 1 950-1 951, at 13 (1952); 1 Am. J. Int'l L. Supp. 129 (1907). 

2. Hague Convention No. IV Concerning the Laws and Customs of War on Land of 
October 18, 1907 (with annexed Regulations), 36 Stat. 2277; Naval War College, International 
Law Documents 1 950-1 951, at 31; 2 Am. J. Int'l L. Supp. 90 (1908). 

3. Geneva Convention for the Amelioration of the Condition of Wounded and Sick of 
Armies in the Field of July 27, 1929, 47 Stat. 2074; 118 L.N.T.S. 303; Naval War College, 
International Law Documents 1 950-1 951, at 40, 49; 27 Am. J. Int'l L. Supp. 43, 59 (1933); and 
Geneva Convention Relative to the Treatment of Prisoners of War of July 27, 1929, 47 Stat. 
2021; 118 L.N.T.S. 343. 

4. Geneva Conventions for the Protection of War Victims of August 12, 1949, [1955] 3 
U.S.T. 3114; 75 U.N.T.S. 31; Naval War College, International Law Documents 1950-1951, at 
81. 

5. Preamble, 1899 Hague Convention No. II, supra note 1. This statement, or a paraphrase 
thereof, will also be found in each of the Conventions cited in notes 2 to 4 supra. 

6. Section 14, General Orders No. 100, 24 April 1863, Instructions for the Government of 
the Armies of the United States in the Field, 2 F. Lieber, Miscellaneous Writings 245 (1881); 
Naval War College, International Law Discussions 1903, at 115 (1904); The Laws of Armed 
Conflicts 3 (D. Schindler & J. Toman eds., 1973). 

7. J. Morgan, The German War Book 69 (1915). 



208 

8. 22 Int'l Mil. Tribunal, Trial of the Major War Criminals 469-70 (1948); Nazi Conspiracy 
and Aggression: Opinion and Judgment 56 (1947); 41 Am. J. Int'l L. 172, 224 (1947). 

9. U.S. Dep't of Army, Field Manual No. 27-10, The Law of Land Warfare, para. 3a 
(1956). See also, U.S. Dep't of Navy, NWIP 10-2, Law of Naval Warfare, sec. 220a (1958). 

10. Great Britain, War Office, The Law of War on Land: being Part III of the Manual of 
Military Law, para. 633 (1958). 

11. United States v. Krupp, 9 Trials of War Criminals before the Nuremberg Military 
Tribunals under Control Council Law No. 10, at 1347 (1950). 

12. United States v. List, et al. (The Hostage Case), 11 id. 1253, 1272 (1950). 

13. Quoted in 2 U.S. Dep't of Army, Pamphlet No. 27-161-2, International Law, at 10 
(1962). 

14. The defense that the accused had acted in accordance with the orders of a superior was 
the one most frequently advanced in the war crimes trials conducted after World War II. It was 
universally rejected as a defense, although it was considered in mitigation of punishment. 15 
United Nations War Crimes Commission, Law Reports of Trials of War Criminals, at 157-60 
(1949). 

15. Concerning this incident, see Charles Whiting, Massacre at Malmedy (New York: Stein 
and Day, 1971), pp. 52-53. 

16. Id., at 195. 

17. Saint Louis Post- Dispatch, 15 July 1976, at 2A. 

18. Concerning this incident, see Winston Churchill, The Hinge of Fate (Boston: Houghton 
Mifflin, 1950), pp. 758-60. 

19. The Law of War on Land, supra note 10, at 53, n.l. 

20. United States v. List, supra note 12, at 1269-70. 

21. Article 46, Geneva Convention for the Amelioration of the Wounded and Sick of Armed 
Forces in the Field of August 12, 1949, [1955] 3 U.S.T. 3114; 75 U.N.T.S. 31; Naval War 
College, International Law Documents 1 950-1 951, at 81. 

22. Article 33(3), Geneva Convention Relative to the Protection of Civilian Persons in Time 
of War of August 12, 1949, [1955] 3 U.S.T. 3516; 75 U.N.T.S. 287; Naval War College, 
International Law Documents 1950-1951, at 170. 

23. Article 13(3), Geneva Convention Relative to the Treatment of Prisoners of War of 
August 12, 1949, [ 1955] 3 U.S.T. 3316; 75 U.N.T.S. 135; Naval War College, International Law 
Documents 1950-1951, at 116. 

24. United States v. List, supra note 12, at 1269-70. 

25. Concerning this incident, see William Stevenson, A Man Called Intrepid (New York: 
Harcourt Brace Jovanovich, 1976), p. 357. 

26. Moritz, "The Common Application of the Laws of War Within the NATO-Forces," 13 
Mil. L. Rev. 1, 14 (1961); Levie, "Maltreatment of Prisoners of War in Vietnam," 48 B.U.L. Rev. 
323, 357-58 (1968). To the same general effect, see United States v. List, supra note 12, at 1270. 

27. Shelby Foote, The Civil War: Red River to Appomattox (New York: Random House, 
1974), v. Ill, pp. 805-06. 

28. 1 Report of the International Committee of the Red Cross on its Activities during the 
Second World War, at 368-70 (1948); The Law of War on Land, supra note 10, at 53 n.2. 

29. Levie, supra note 26, at 353-54. 

30. Notes 1 and 2 supra. 

31. Note 22 supra. 

32. Synoptic Table of the Draft Additional Protocols to the Geneva Conventions of August 
12, 1949, and the Texts Adopted by the Main Committees at the First and Second Sessions of 
the Diplomatic Conference [on the Reaffirmation and Development of International Humani- 
tarian Law Applicable in Armed Conflicts] , CDDH/226, 15 December 1975, at 88-89. 

33. Id. at 94-95. 

34. Id. at 102-04. 

35. Id. at 105. 

36. Note 23 supra. 

37. See text accompanying notes 15 to 19 above. 

38. Article 130, op. cit. supra, note 23. 

39. Note 2 supra. 



209 



THE LAW OF WAR 



Richard R. Baxter 



A great many international lawyers 
hold the view that if we do not notice 
war it will go away. 

Their reasons for this view are along 
the following lines: The Kellogg-Briand 
pact brought about the renunciation of 
war as "an instrument of national 
policy." The United Nations Charter 
makes unlawful the use of armed forces 
except on behalf of the United Nations 
or in the exercise of "the inherent right 
of individual or collective self-defense." 
Therefore, war as an institution recog- 
nized by international law no longer 
exists. It has, for example, been the 
consistent position of Israel in its hos- 
tilities with Egypt and the other Arab 
states that the legal institution of war 
has been suspended by the United 
Nations Charter, and that even when a 
state is acting in self-defense the hostili- 
ties are not war for the purposes of 
international law. It seems to me that 
only a primitive confidence in the 
magic power of words can explain this 
taboo on the use of the word "war." 
We apparently are to derive comfort 
from the thought that there have been 
no wars since the adoption of the 
United Nations Charter— only armed 
hostilities. 

This comfortable confidence in the 
efficacy of legal prohibitions is belied 
by the facts. There has probably not 
been a minute since the signature of the 
Kellogg-Briand pact in 1928 when there 
has not been a war in progress some- 
where in the world. Consider, if you 



will, the number of instances of armed 
hostilities of an internal or international 
character there have been since the 
adoption of the Charter— civil war in 
Greece and in China, the rebellion of 
Indonesia, the hostilities in Korea, the 
continuing contention between Israel on 
the one hand and Egypt and the other 
Arab states on the other. The United 
States was in a technical state of war 
from 1941 until 1952, at which time 
the war with Germany and Japan finally 
came to an end. If we follow the 
orthodox view that an armistice only 
suspends hostilities, the United States 
may still be in a state of undeclared war 
as regards Korea. 

It was, of course, contemplated that 
the United Nations would have at its 
disposal sufficient military strength to 
enable it to deal with the unlawful use 
of armed force. The scheme envisaged 
by the United Nations Charter was that 
national military, naval and air con- 
tingents would be made available to the 
United Nations by agreement with all of 
the members of the organization. How- 
ever, no such agreement was ever signed, 
and the United Nations Armed Forces 
have consequently never come into 
being. The Korean action, although 
called a United Nations action by 
journalists and politicians, was not a 
United Nations action for legal pur- 
poses. You will recall that the lead in 
repelling North Korean aggression was 
taken by the United States. The resolu- 
tion of the Security Council which gave 



210 



it- blessing to this aid b\ the I nited 
States mere!) "recommended dial 
states "providing military forces and 
other assistance . . . make such forces 
and other assistance available to a 
unified command under the United 

States. In Btrict l;i w , the action was one 

l>\ tlic I nited Stairs aided h\ other 

forces which states had made available 
to the I nified Command at the recom- 
mendation of the Securit) Council. The 
I nified Command was, in turn, the field 
force of the I nited Nations Command. 

With the breakdown of the enforcement 

machinery which was contemplated by 

the Charter, it becomes even more 
difficult to say that war has ceased to 
exist Our own eyes tell us that it does 
exist, and that there is no military force 
representing the international com- 
munit\ which has the power to prevent 
or stop it. 

A concomitant to the view that war 
has ceased to exist is the easy assump- 
tion that neutrality also is a thing of the 
past A superficial examination of the 
power situation in the world may lead 
to the conclusion that everyone must 
and does choose up sides in war. The 
legally-minded may say that the United 
Nations Charter has made it impossible 
for a state to be neutral. To adopt either 
of these views is, however, to overlook 
the plain fact that there are states which 
are dedicated to the principle that neu- 
trality is possible and indeed desirable. 
In the first place several states within 
and outside the United Nations have 
plainly shown that in any conflict they 
would wish their position as neutrals to 
be respected. I need mention only 
Switzerland, Sweden, Austria, and India 
as examples. Moreover, members of the 
I nited Nations could very well be 
under a duty to preserve a position of 
neutrality. Article 48 of the Charter 
provides that actions required to carry 
out decisions of the Security Council 
may be taken by all of the members of 
the United Nations or by some of them, 
as determined by the Security Council. 



It i> quite possible to conceive a situa- 
tion in which the United Nations had 
required the taking of action by only 
two or three members of that organiza- 
tion. The other members <>l the organi- 
zation would he under an obligation not 
to pitch into the fray if the) had not 
been invited to do so by the Securit\ 
Council. Those nations which arc not 
members of the United Nations an' not 
obliged to take part in hostilities on 
behalf of the United Nations, and may 
remain neutral. The requirement of 
paragraph 6 of Article 2 of the Charter 
that the organization ensure that non- 
members act in accordance with the 
basic principles set forth in that article 
cannot be carried so far as to demand 
the taking of military measures by 
nonmembers against their will. The fact 
that the military arrangements specified 
by the Charter have never been carried 
into effect indicates that future hostili- 
ties are likely to fall in the category of 
individual or collective self-defense 
under Article 51 of the Charter. In such 
circumstances, those who choose not to 
ally themselves with the state which is 
attacked will be under an obligation to 
perform their neutral duties as regards 
both parties to the hostilities and may 
claim respect for their neutral rights. 

So long as one state can and does 
remain neutral, the institution of neu- 
trality will remain of consequence. 
Violation of the air space of a neutral 
state, or an altogether accidental 
bombing of its territory, will make the 
state which is responsible for these acts 
accountable in damages and oblige it to 
punish those who have been responsible 
for this conduct. This was the basis 
upon which damages were paid to 
Switzerland for the accidental bombing 
of its territory during World War II. The 
lawyer describes the liability in such 
cases as "absolute"; that is, as meaning 
that responsibility exists even if there 
has been no wrongful intent or negli- 
gence. A state which chooses to remain 
neutral will also be entitled to claim 



211 



respect for its territorial sea— perhaps 
even a territorial sea which it has con- 
sistently, with the recent practice of 
nations, extended out a considerable 
distance into the high seas. 

If you will agree with me that these 
old-fashioned institutions of war and 
neutrality exist in the modern world, we 
can then proceed to a consideration of 
what connection law has with war. I 
submit as my major proposition that 
law can have a most important effect 
on the conduct of war in certain re- 
spects and absolutely none in others. As 
a matter both of the logic of force and 
of experience, law cannot control cer- 
tain aspects of warfare. The law of war 
has had virtually no effect on the use of 
weapons. It has, of course, been a 
traditional, but unavailing, response to 
almost every new weapon to contend 
that it violates international law. You 
may recall from naval history accusa- 
tions of this kind about chain and 
heated shot. 

The weapons which are of concern to 
us today are those which could, until 
comparatively recently, have been re- 
ferred to as the ABC weapons— atomic, 
bacteriological, and chemical. To these 
unhappy three must now be added a 
fourth— the hydrogen device. There is 
no specific prohibition of the use of any 
of these weapons in any treaty to which 
the United States is a party. 

The Treaty of Washington of 1922, 
prohibiting the use in war of poisonous 
gases, was signed by the United States 
but never came into force. The Geneva 
Protocol of 1925, which prohibited the 
use in war of "asphyxiating, poisonous, 
or other gases, and of bacteriological 
methods of warfare," was likewise 
signed by the United States. The United 
States, however, never ratified this 
protocol, and it is accordingly not 
binding on this country. It has neverthe- 
less been signed or acceded to by most 
of the other nations of the world, 
including, interestingly enough, Soviet 
Russia. There are those who would 



contend that the widespread acceptance 
of this agreement, the prohibition of 
international law against the use of 
poisoned weapons, and customary inter- 
national law itself forbid the use of gas. 
However, the failure of belligerents to 
use this weapon on any large scale is 
probably a consequence of its military 
ineffectiveness and of the probability of 
retaliation by the enemy rather than of 
the force of international law. The 
weapon was, as you know, employed to 
a limited degree by the Italians against 
the Ethiopians and by the Japanese 
against the Chinese. The latter instance 
resulted in prosecutions of the respon- 
sible persons by the Soviet Union. 

The Hague Regulations of 1907, re- 
garding the laws and customs of war on 
land, to which the United States is a 
party, speak only in the most general 
terms of the use of weapons. Article 23 
prohibits the employment of "poison or 
poisoned weapons" and of "arms, pro- 
jectiles, or material calculated to cause 
unnecessary suffering. " I think you will 
agree with me that these provisions, 
which are in any case of doubtful 
applicability to aerial warfare, do not 
place any definite prohibition on the 
use of what we must call the ABC and H 
weapons. If a weapon confers a clear-cut 
military advantage when directed 
against enemy forces or military objec- 
tives, it is difficult to say that the 
suffering which it causes is unnecessary. 

If the international law of war can- 
not control the use of weapons, what, 
then, can be its function? I would 
submit to you that the law of war can 
have great effectiveness in dealing with 
the relationships of individuals, whether 
they be members of the armed forces or 
civilians. The reason for this is that 
international law can regulate these mat- 
ters without imperiling the ultimate 
military success of the belligerent which 
adheres to the law. If the law really 
attempted to regulate the use of weap- 
ons, the lawless belligerent would have 
an overwhelming military advantage 



212 



i>\(T the law-abiding belligerent. 11, on 
the other hand, the force of interna- 
tional lam were such as to foreclose the 

I18C «»i die most powerful weapons ot 

\sat\ it is not unreasonable to suppose 
that international law would have suf- 
ficient Btrength to bring an end to war 

itself. 

For this reason, the law of land 
warfare is probably more effective than 
what little law exists about aerial and 
naval warfare, for it is in dealing with 
prisoners of war, with the wounded and 
the sick, and with civilians that the law 
comes into its own in the protection of 
human beings. A belligerent will in all 
likelihood find that its attainment of its 
military objective in time of war and of 
its long-range ends after the restoration 
of peace is actually aided by the fair, 
decent, and chivalrous treatment of 
enemy and neutral personnel with 
whom it comes in contact. 

The objection which is often made to 
the recognition of legal safeguards for 
individuals in the international law of 
war is that "war is all so terrible 
anyway." If hundreds of thousands are 
being killed in the course of hostilities, 
so the argument runs, why should we 
concern ourselves about single persons? 
The reason for the application of law in 
this area is to be found in a fundamental 
human response to warfare and human 
misery. We realize that even though 
millions may be suffering, this offers no 
justification to add one more person to 
that group if injury to him can be 
avoided. To find the basis for this, you 
must go back to the respect for human 
dignity and for the worth of the indi- 
vidual, which is the foundation of civili- 
zation itself. 

The infliction of suffering is an in- 
evitable part of war. At the same time, 
it is quite clear that the infliction of 
certain types of suffering creates no real 
military advantage at all. It is, of course, 
always possible to invent a reason for 
injury to even the most innocent 
amongst enemy persons. One might, for 



example, contend that bayoneting 
children is militarily necessary in that it 
affords practice to the troops and ac- 
customs them to the sight of blood. Hut 

we do recognise that many acts create 
Buffering out of all proportion to any 
military advantage to be gained. It is 
these very acts which international law 
prohibits, because international law con- 
terns itself with minimizing suffering in 
warfare and equally in creating tin; 
conditions under which the making of 
peace becomes possible. Unbridled 
license in warfare or violation of mili- 
tary compacts once made can only have 
the effect of making more difficult the 
creation of peace, which must be in all 
cases the end of every war. 

It is maintained by some that with 
recognition of the unlawfulness of 
aggressive war and with the creation of 
forces purporting to act on behalf of the 
United Nations there should be one law 
of war applicable to those acting on 
behalf of the international community 
and another body of law having applica- 
tion to the nation which violates inter- 
national law by resorting to force or the 
threat of force. If, as I have indicated, 
the purpose of the law of war is 
fundamentally humanitarian, it is hard 
to see what justification there can be for 
a double standard. There can certainly 
be no reason for two separate systems 
of law in the case of prisoners of war, 
civilian victims of war, and the wounded 
and sick. There may be some reason for 
making a distinction in the law ap- 
plicable with regard to the rights and 
duties of a belligerent respecting neutral 
commerce. However, if the customary 
rules of war regarding this subject are 
considered to be an attempt to place a 
limitation on violence and upon the 
spread of war, it may be desirable to 
have the same rules applied to both 
belligerents. If there is not a mutuality 
of legal requirements, there is every 
probability that the unlawful belligerent 
will feel bound by no restrictions what- 
soever in its conduct of warfare. We 



213 



cannot hope for a really sophisticated 
approach to this problem until such 
time as true international police forces 
are created and there exists a strong 
probability that all unlawful resorts to 
war will be repressed by the interna- 
tional community. Until that time 
arrives, there is every reason for caution 
in making changes in a body of law 
which takes war as it is and attempts to 
place some reasonable limits upon it. 

The law of war is essentially prohibi- 
tive law, and it is therefore inevitable 
that it should— to your distress— tell you 
what you cannot do. The law of war is 
essentially a limitation on violence, on 
that violence which is the very essence 
of war. Accordingly, there is no "right" 
to injure the enemy, only a limitation 
on the way that violence can be em- 
ployed. You will find in the Law of 
Naval Warfare a reference to a basic 
principle of "military necessity." This 
principle never allows a belligerent to 
resort to measures which are prohibited 
by international law. To the plea of 
"military necessity," made by great 
numbers of persons accused of war 
crimes after World War II, military 
tribunals were unanimous in responding 
that this so-called "principle," to which 
the Germans in particular attached great 
importance, authorized no departure 
from the law of war, even though 
adherence to the law might cause the 
loss of a battle or even of a war. There 
are, of course, articles in the treaties 
relating to the law of war in which 
specific reference is made to the fact 
that military necessity may authorize a 
departure from the rules laid down in 
the particular article. These are the only 
cases in which the law of war allows 
military necessity to dictate the extent 
of the legal duties resting upon a bellig- 
erent. 

The complaint most often made by 
laymen against international law is that 
it lacks an effective sanction. There are 
three sanctions for the violation of the 
law of war which are important for our 



purposes. The first of these is the 
possibility of reprisals against the 
enemy. By this, I mean the taking of 
measures which would otherwise be 
unlawful as a response to the unlawful 
conduct of the enemy. It is quite 
obvious that the institution of reprisals 
offers an easy way out of the restraints 
imposed by law, for an allegation of 
misconduct can be claimed as a basis for 
the throwing off of all legal restraints by 
the other belligerent. Because reprisals 
have in practice been the subject of 
abuse, the new Geneva Conventions of 
1949 contain express prohibitions on 
reprisals and collective punishments 
against prisoners of war, the wounded 
and sick, and civilians in occupied terri- 
tory. The scope which is left for the 
application of reprisals seems now to be 
the civilian population in territory not 
yet occupied and the armed forces of 
the enemy before they have been taken 
prisoner. 

A second possible sanction for viola- 
tion of the law of war is the require- 
ment that the offending belligerent pay 
damages for the injuries which it has 
caused. This requirement has usually 
proved ineffective since a defeated bel- 
ligerent which has resorted to unlawful 
measures is not normally in a financial 
position to pay for all of its wrong- 
doings. When damages are paid, they 
normally form part of reparations pay- 
ments. 

This leaves as the third possible 
sanction the punishment of the indi- 
viduals who are responsible for viola- 
tions of international law. If the interna- 
tional law of war is to accomplish 
anything, if real restraints are to be 
placed upon violence in warfare, the 
wrongdoer must be held criminally 
accountable for violations of the law. 

You cannot both reproach interna- 
tional law for lack of an effective 
sanction and at the same time complain 
that individuals may be tried for viola- 
tion of the law of nations. I know that 
the usual reply to this is, "How would 



214 



\oii like to be tried l>\ the Ku>sians 88 fl 

w.ir criminal? 1 The response to this i^. I 
think, that in the absence oi an) legal 
restraints, you would be entirel) at the 
mere) of an enemy. What the law of 
war crimes does is to attempt to put 
legal safeguards about persons accused 

«>t such crimes and to place limits on the 
measures the encm\ ma\ take. It thus 
place- restraints on the enemy where 
there were none before. 

It is unfortunate that there is no true 
international tribunal lor the trial of 
such persons. No neutral was willing to 
assume the function after World War II, 
and it was unthinkable that the Axis 
powers should have tried their own 
personnel. The Germans were conceded 
this responsibility after World War I and 
made an abject failure of the whole job. 
This left only the victors to do the job 
after the Second World War. 'Victor's 
justice" is not ideal, but for the time 
being there is no alternative. 

The offenses for which Axis per- 
sonnel were tried after World War II 
were of three types. These were crimes 
against peace, crimes against humanity, 
and war crimes. Crimes against peace 
were defined by the Nurnberg and 
Tokyo Charters as consisting in the 
"planning, preparation, initiation or 
waging of a war of aggression, or a war 
in violation of international treaties, 
agreements or assurances." This offense 
has relevance to the inception of war 
rather than the conduct of war, and I 
shall therefore say nothing further 
about it. War crimes consisted plainly 
and simply in "violations of the laws or 
customs of war." Indeed, any violation 
of the international law of war is a war 
crime. The United States has tried 
enemy personnel for these acts through- 
out its history. Why there should be a 
separate category of crimes against 
humanity, I have never quite under- 
stood. Essentially, crimes against 
humanity consist of war crimes com- 
mitted wholesale against the civilian 
population, with a somewhat wider 



jurisdiction granted to the tribunal. 
Conventional war crimes, in the sense of 
violations of tin- laws and customs of 
war, therefore remain as the most im- 
portant single category of criminal acts 
in warfare. 

The usual defense which was made 
by a German or Japanese member of the 
armed forces who was accused of a war 
(lime was that he was ordered to 
commit the offense by his superior. In a 
rigidly hierarchical system, such as that 
of the German Reich, it was quite easy 
to trace all responsibility directly back 
to Adolph Hitler, who was by this time 
providentially dead. Now the fact is that 
in most systems of military law, indeed 
even in the German one, the circum- 
stance that an unlawful act was ordered 
by a superior is not a complete defense 
to the criminal charge against the indi- 
vidual who actually performed the un- 
lawful act. You will, for example, find 
in the Uniform Code of Military Justice 
that the only time a person may be 
punished for disobeying an order is 
when that order is a "lawful command" 
or a "lawful order." It would be strange 
if one could be punished for carrying 
out an unlawful order in military law, 
but could not under international law. 

There are various statements of the 
principle regarding superior orders, but I 
think all of them boil down to some- 
thing about like this: The fact that a 
rule of warfare has been violated in 
pursuance of an order by a superior 
authority, whether military or civil, 
does not deprive an act of its character 
as a war crime, unless the individual did 
not know and could not reasonably 
have been expected to know that the 
act ordered was unlawful. To this must 
be added the caveat that the court must 
take into account the fact that obedi- 
ence is a cardinal principle of military 
command, that soldiers cannot debate 
the legal merits of the acts which they 
are ordered to perform, and that war is 
essentially a state of confusion. But 
there are cases, unfortunately a great 



215 



number, in which the individual quite 
clearly knew, or ought to have known, 
that the act which he was ordered to 
perform was unlawful. Officers of the 
Einsatzgruppen, who were ordered to 
liquidate the Jews, gypsies, Commu- 
nists, "Asiatic inferiors," and the insane 
in areas occupied by the German forces, 
must have known their acts were con- 
trary to international law. The same 
holds true of the noncommissioned 
officer who is awakened in the dead of 
night and told to assemble several 
soldiers for the quiet execution of an 
enemy aviator in the deepest part of the 
forest. I think an examination of the 
war crimes trials in which the plea of 
superior orders was denied would re- 
move any doubt from your mind about 
the type of cases in which there were 
convictions. An examination of German 
military history also teaches us that 
unlawful orders were seldom, if ever, 
delivered with a pistol to the head of 
the person ordered to perform the acts; 
that they could be, and were by some, 
circumvented; and that in those cases in 
which the individual had enough 
courage to resist an unlawful order, he 
was not severely punished, or even 
punished at all, for his violation of the 
order. Duress may, if properly proved, 
be an appropriate defense, but the 
duress must be such as to justify the 
commission of the unlawful act. The 
threat of an immediate court-martial 
may not justify the execution of a 
thousand innocent victims of war within 
gas chambers. In essense, however, the 
supposed conflict between the demands 
of international law and of a man's own 
military law has seldom, in practice, 
proved to be a real one. 

It is a concomitant of the principle 
of superior orders that a military com- 
mander who knowingly allows war 
crimes to be committed by members of 
his forces is responsible for their acts. 
This principle recognizes that a military 
commander has a responsibility, as well 
as a right, to control the activities of the 



forces which he commands. You will 
recall that" General Yamashita was found 
guilty on this basis and that the United 
States Supreme Court refused to reverse 
the decision of the military commission 
which tried him. While we may disagree 
on the facts about the guilt of General 
Yamashita, there is no reasonable argu- 
ment which can be made against the 
principle that a military commander is 
accountable for the conduct of his 
troops. 

What I have been saying about indi- 
vidual responsibility in the law of war 
represents the customary or unwritten 
international law on the subject. The 
law which defines the actual duties of 
members of the armed forces and 
civilians in warfare is precise in its terms 
and reduced to written form. The 
treaties to which one must primarily 
look concerning air and land warfare are 
the Regulations annexed to Convention 
No. IV of The Hague of 1907 and the 
new Geneva Conventions of 1949. 
There are four of these last-named 
treaties, and they relate to the wounded 
and sick in land warfare, the wounded, 
sick and shipwrecked in naval warfare, 
prisoners of war, and civilians. They are 
the product of much thought before 
and during the Second World War and 
of four years of negotiations in which 
members of the armed forces took a 
prominent part. The United States and 
more than fifty other states, including 
U.S.S.R., are parties to the Geneva 
Conventions of 1949. A similarly large 
group of states are parties to The Hague 
Regulations of 1907, which have, in any 
event, been held by war crimes tribunals 
to be declaratory of customary interna- 
tional law and thus binding on nations 
which are not parties. These treaties 
have exactly the same standing as any 
law of the United States. You and I are 
thus as firmly bound by these agree- 
ments as we are by the Uniform Code of 
Military Justice and by federal criminal 
laws. 

At the time of the adoption of the 



216 



new (!odr of Conduct for th«* armed 
forces, there was much thought given to 

the question o! the legal protection 
placed about prisoners by the Geneva 
Prisoners of War Convention of 1949. 

While the Convention does not specif i- 
call) refer to brainwashing, it does deal 
in more general terms with the question 
of coercion directed against prisoners of 
war. There is, of course, the well-known 
article which states that a prisoner of 
war is required to give only his name, 
date of birth (this is new), and serial 
number. Beyond this, he is not required 
to furnish any military information, and 
the Convention precludes physical or 
mental torture and other forms of 
coercion in order to secure information 
from the prisoner. It also provides that 
prisoners of war who refuse to give 
information may not be "threatened, 
insulted, or exposed to unpleasant or 
disadvantageous treatment.' The Pris- 
oners of War Convention establishes 
minimum standards for the detention of 
prisoners of war, particularly as regards 
their quarters, food, clothing, medical 
attention, and religious and intellectual 
facilities. While the Convention requires 
the Detaining Power to encourage in- 
tellectual and educational pursuits, this 
provision cannot be regarded as a justi- 
fication for compulsory indoctrination 
of prisoners. 

On the other hand, the Convention 
pays due deference to the need of the 
Detaining Power to maintain order in 
the camps. There are elaborate provi- 
sions in the Convention regarding the 
penalties which may be imposed on 
prisoners of war for misconduct. The 
Convention prohibits adverse distinc- 
tions based on "race, nationality, religi- 
ous belief or political opinions." It 
would be reasonable to interpret this 
provision as meaning that the mere 
party 7 affiliation of a prisoner of war 
does not justify segregating him or 
treating him adversely. However, if 
political opinion ripens into overt acts, 
the Convention interposes no obstacle 



to the segregation of the troublemakers. 
Prisoners may not be separated from 
others belonging to the same armed 
forces, except with their consent. 

Another major problem which is 
likely to be encountered in a future war 
is guerilla and resistance activity by 
civilians in the face of the forces and 
behind the lines. The Geneva Civilians 
Convention protects the inhabitants of 
occupied territory against arbitrary and 
unfair acts by the occupant by requiring 
a system for the administration of 
justice which resembles that prevailing 
in most civilized countries. Thus, before 
a civilian who has been guilty of hostile 
conduct in an occupied area may be 
punished, the offense must have been 
defined in a directive which was pub- 
lished prior to the commission of the 
crime. If guerilla activities are con- 
ducted by civilians, it is necessary that 
these individuals be screened by 
administrative proceedings from peace- 
ful civilians and those entitled to 
prisoner-of-war treatment before they 
may be tried and executed for their 
belligerency. The requirement of 
treating individuals in arms as prisoners 
of war applies only to members of the 
regular armed forces and to members of 
resistance movements who are com- 
manded by a responsible person, wear a 
fixed distinctive sign, carry arms openly, 
and conduct their operations in ac- 
cordance with the law of war. 

Each war has seemingly found the 
United States unprepared to exploit the 
labor potential represented by prisoners 
of war who are in our hands. We have 
learned through disorders in prisoner- 
of-war camps in Korea that Satan is still 
capable of finding mischief for the idle 
hands to do. The Geneva Prisoners of 
War Convention contains an article on 
the work in which prisoners of war may 
be employed and also prohibits the 
employment of prisoners in unhealthy 
or dangerous work, unless they volun- 
teer for it. The limitation which is 
placed on many types of prisoner-of-war 



217 



labor is that it must have no "military 
character or purpose," and it can be 
anticipated that there may be some 
difficulty in interpreting what is meant 
by this particular expression. However, 
it seems to have been the understanding 
of the draftsmen of this article that no 
real change from the standards of the 
old 1929 Convention was involved. 
Accordingly, one may suppose that the 
type of work in which prisoners may be 
employed is roughly the same as it has 
been in the past, but it would probably 
be wise to consult your lawyer if you 
are faced with the problem of employ- 
ing prisoners. 

In becoming a party to the Geneva 
Conventions of 1949, the United States 
reiterated that it adhered to its inter- 
pretation of Article 118, regarding the 
repatriation of prisoners of war. It is the 
position both of the United Nations, as 
expressed in a resolution of the General 
Assembly, and of the United States that 
this article does not require the forced 
repatriation of prisoners of war who do 
not desire to return to their own coun- 
try, provided the Detaining Power is 
willing to grant asylum. Consistently 
with this principle, thousands of North 
Korean and Chinese Communist soldiers 
held as prisoners who did not desire 
repatriation to North Korea were per- 
mitted to remain in South Korea or to 
migrate to other lands. 

The Geneva Conventions contain 
provisions regarding the trial of war 
criminals. Certain serious violations of 
the Conventions are defined as "grave 
breaches," and the treaties require the 
parties to take measures against these 
grave breaches, whether committed by 
their own or by enemy personnel. The 
Prisoners of War Convention also con- 
tains a requirement that prisoners who 
are convicted of war crimes continue to 
receive the protection of that Conven- 
tion, even after they have been con- 
victed. This represents, I might add, a 
departure from what has hitherto been 
the practice of the United States. To 



this article of the Convention, Soviet 
Russia made a reservation, stating that it 
would not be under any obligation to 
extend the benefits of the Prisoners of 
War Convention to convicted war crimi- 
nals. In ratifying the Convention, the 
United States refused to accept this 
Russian reservation, but the legal situa- 
tion created by this statement of the 
United States is clouded and I would 
prefer not to discuss it in detail. 

There are virtually no restraints im- 
posed by law on the conduct of aerial 
warfare. According to traditional inter- 
national law only military objectives 
might be attacked from the air and the 
bombardment of undefended places was 
forbidden. With the mobilization of the 
entire industrial base of a country for 
war, and the enhanced importance of 
communications facilities, the list of 
legitimate military objectives has be- 
come of immense length. We have like- 
wise increased the power of weapons to 
a degree which would have seemed 
fantastic two decades ago. And, finally, 
the mobility of land and sea forces and 
the omnipresence of aerial activity 
makes it difficult to say that any spot is 
actually undefended. The rule itself may 
not have changed, but military objec- 
tives have so increased and undefended 
places so diminished that there is virtu- 
ally no room for the operation of the 
rule. 

The one major exception which may 
perhaps be made to this generalization 
relates to "open cities," which are 
immune to bombardment. These are 
cities in which all military activities have 
ceased, including the manufacture of 
military supplies and the passage of 
transport, and which are about to fall 
into the hands of the enemy. The 
purpose of these arrangements is to 
preclude the bombardment of cities 
which are undefended and open to 
enemy occupation. There have been a 
number of instances of such open cities 
in recent wars, notably in the cases of 
Paris, Rome, and Manila, and those of 



218 



us whi) an' interested in mitigating tin* 
severities of warfare see in this institu- 
tion some hope of protecting large 

Segments *>i the civilian population. The 
Hague Regulations, a> I have mentioned. 

contain i prohibition on the attack or 

bombardment "by whatsoever means" 
of towns and villages which are un- 
defended. This provision has, ot course, 
an obvious relevance to the open city 
question. 

There is one area of the law about 
which 1 shall say very little, because the 
law on this subject is adequately laid 
out in NWIP 10-2 and in the standard 
treatises on the law of war. I need only 
mention that agreements between bellig- 
erents must be scrupulously adhered to, 
whether they relate to the suspension of 
hostilities or to the surrender of forces. 
Violations of these agreements by in- 
dividuals may be, and, indeed, cus- 
tomarily have been, punished by the 
opposing belligerent. Several German 
naval officers who ordered the scuttling 
of submarines after the surrender of the 
German forces in World War II were 
convicted of a violation of the law of 
war in that they failed to comply with 
the terms of unconditional surrender. 

As I stated at the beginning of this 
lecture, there is still room for the 
operation of the law of neutrality. It is 
therefore necessary to have occasional 
resort to the conventions relating to 
that subject. The treaty bearing on 
neutrality in land warfare is Convention 
No. V of The Hague of 1907. Among 
other things, this Convention requires a 
belligerent to respect the territory of 
neutral powers. Even the unintentional 
violation of such territory by way of the 
entrance of troops or of bombardment 
can subject the offending belligerent to 
heavy damages and to demands for the 
punishment of the responsible individ- 
uals. A neutral power, into whose terri- 
tory belligerent forces come, is required 
to intern them, and the provisions of 
the Geneva Prisoners of War Convention 
of 1949 are applicable to such persons. 



Individual escaped prisoners are, how- 
ever, to be left at liberty. A non- 
belligerent is forbidden to allow the 
passage ol enemy troops through its 
territory, except lor convoys ol 
wounded and sick. The Swedish govern- 
ment violated its duties of neutrality in 
World War II by allowing certain Ger- 
man forces to pass through its territory, 
and Spain was at one time giving serious 
consideration to allowing German 
troops to cross the country in order to 
attack Gibraltar. One of the effects of 
the United Nations Charter may be to 
require a state not taking part in the 
hostilities to permit the passage of 
forces acting on behalf of the United 
Nations and to deny to that state the 
contention that its neutrality would 
thereby be compromised. 

A neutral is not required to forbid 
the sale of arms and other munitions of 
war to the belligerents by its nationals, 
but it is forbidden, by orthodox law, to 
make such sales itself. The extent to 
which states now participate in trade, 
and the practice of nations, especially 
that of the United States, during recent 
years has made the distinction between 
sales by private persons and by govern- 
ments anachronistic. 

What I have had to say about the 
general principles of law of war and 
about the law of land and air warfare 
has necessarily been brief and very 
much condensed. I hope, in particular, 
that you will have given earnest and de- 
tailed consideration in your reading to 
the provisions of the Geneva Conven- 
tions of 1949, which hold great promise 
for alleviating some of the hardships of 
warfare. I think you will agree with me 
that one of the great objectives of the 
United States and of the West in the 
long-range struggle in which we are en- 
gaged is the establishment for the entire 
world of the rule of law. If we ourselves 
do not adhere to that standard and de- 
mand compliance with the rule of law 
by those who may be arrayed against us, 
we will have abandoned one of the vital 



219 



objectives we are bent upon attaining. 
The legal restraints which I have out- 
lined for you combine a minimum of 
impediment to military action with a 
maximum of protection for those who 
are the victims of war. Indeed, our very 



t 



adherence to the law of war will facili- 
tate the conduct of warfare by con- 
vincing the enemy of our own regard for 
fairness and justice and by creating 
those conditions under which peace will 
once more be possible. 



220 



THE GENEVA CONVENTIONS OF 1949 



Richard R. Baxter 



The Geneva Conventions of 1949, l 
like other treaties concerning warfare, 
are grounded in the concept of a hard, 
clean war. In 1863, Lieber wrote in 
(i» neral Orders No. 100, the first mod- 
ern codification of the law of war, "The 
more vigorously wars are pursued, the 
better it is for humanity. Sharp wars are 
brief. I venture to suggest that this 
express statement, which was inserted in 
a code of the law of war drafted over 
ninety years ago, continues to be one of 
the implied assumptions of the modern 
law of war. 

The law of war is itself a compromise 
between unbridled license on the one 
hand and, on the other, the absolute 
demands of humanity, which, if carried 
to a logical extreme, would proscribe 
war altogether. Stated in other terms, 
the law seeks to limit the measures of 
war to those which are necessary and to 
curb those activities which produce suf- 
fering out of all proportion to the 
military advantage to be gained. The 
Geneva Conventions, which comprise, at 
least in land warfare, the most im- 
portant segment of the law relating to 
the conduct of war, have drawn the line 
between necessary measures of war and 
unnecessary suffering in terms of 
people. The Conventions are designated, 
as you have seen from the copies you 
have read, as being "for the Protection 
of War Victims." The victims who are 
protected are the wounded and sick in 



land warfare, the wounded, sick, and 
shipwrecked in warfare at sea, prisoners 
of war, and civilians. These four cate- 
gories share one essential characteristic: 
they all consist of persons who have 
been put out of action or who, as 
noncombatants, do not take part in 
hostilities. Those who have been put out 
of action are the wounded, the sick, the 
shipwrecked, and the soldiers, sailors, 
and airmen taken as prisoners. The 
noncombatants are the medical per- 
sonnel and the chaplains in the armed 
forces and the civilian population, or at 
least that portion of it which takes no 
part in active hostilities. The four classes 
of persons protected by the four Con- 
ventions also possess the common 
characteristic of being individuals with 
whom the enemy comes face to face, as 
the line of battle moves on. Fundamen- 
tally, the Conventions deal with the 
safeguarding of people, not in the heat 
of battle, but as conditions become 
somewhat more stabilized— when terri- 
tory is occupied, when soldiers are 
taken as prisoners and put in prisoner of 
war camps, when the wounded are 
picked up and evacuated to hospitals. 
The Conventions contain no provisions 
about the types of weapons which may 
be employed or the use which may be 
made of them; they make no reference 
to nuclear weapons, to bacteriological 
warfare, or to chemical warfare. They 
say nothing about the waging of 



221 



hostilities against the enemy forces. Of 
course, in order to take care of these 
victims of war, the Conventions must 
have application to certain situations 
while combat is still in progress, but the 
overwhelming majority of their provi- 
sions relates to conditions which, if not 
necessarily tranquil, are considerably 
more ordered than those of the battle- 
field. The compromise between decima- 
tion and absolute humanity, to which I 
referred a few moments ago, is, we can 
now observe, based on the considera- 
tions that the mistreatment of those 
who do not or can no longer take part 
in hostilities confers no real military 
advantage and the humane treatment of 
these individuals will not stand in the 
way of an aggressive pursuit of victory. 
Indeed, the fair treatment of victims of 
war may in itself be militarily advan- 
tageous. 

The Geneva Conventions of 1949 are 
at once old and new. They are old in the 
sense that they are outgrowths of earlier 
treaties dealing with the same subjects. 
The United States was in 1949 already a 
party to Convention No. IV of The 
Hague of 1907 2 regarding the conduct 
of warfare on land, which contains 
provisions relating to prisoners of war, 
the wounded and sick, and civilians in 
occupied territory. We were also parties 
to the 1929 Geneva Wounded and Sick 
and Prisoners of War Conventions and 
to Convention No. X of The Hague of 
1907 for the adaption to maritime 
warfare of the principles of the Geneva 
Convention of 1906, 3 the predecessor 
of the 1929 Wounded and Sick Conven- 
tion. These Conventions had their an- 
tecedents in General Orders No. 100, 
Regulations for the Government of 
Armies of the United States in the 
Field, which were promulgated by the 
United States during the Civil War. This 
was the first modern codification of the 
law of war, and the international 
treaties subsequently adopted owe a 
considerable indebtedness to this early 
effort. Historically, the United States 



has pursued a policy of strict adherence 
to these international agreements, 
despite the fact that individuals have 
from time to time attempted to substi- 
tute their judgment of the wisdom of 
the Conventions for that of their 
Government. It is important to remem- 
ber about these earlier treaties, as it is 
about the Geneva Conventions of 1949 
as well, that they are in large measure 
codifications of customary international 
law— the common law of war— by which 
the country would be bound even if it 
were not a party to the treaties. 

Even before the outbreak of the 
Second World War, it had been recog- 
nized, however, that the older treaties 
were in need of revision in order to 
accommodate them to changed condi- 
tions. These new circumstances were the 
result not only of changed techniques in 
the waging of war but also, and perhaps 
more importantly, of increased effi- 
ciency and ingenuity in the oppression 
of the victims of war. The events of 
World War II did no more than confirm 
these suspicions that the Conventions 
required tighter drafting, greater preci- 
sion, changes, and additions in order to 
spell out a useful code for the conduct 
of belligerents. In particular, the few 
provisions regarding civilians in occu- 
pied territory which appeared in The 
Hague Regulations of 1907 and the 
attempted application of the Prisoners 
of War Convention of 1929 to civilian 
internees by analogy seemed altogether 
inadequate as safeguards for civilians in 
wartime. Although we have since lived 
through the Korean conflict, I think it is 
fair to say that the problems concerning 
prisoners of war and civilians which we 
encountered in these hostilities were 
merely the counterparts of similar prob- 
lems faced during the Second World War 
itself. The mistreatment of prisoners 
was not invented by the North Koreans 
in 1950. 

While the fighting was still going on 
in 1945, the International Red Cross 
had initiated studies of the revision of 



999 



tin- older Conventions. Technical meet- 
ings were lu*l«l in that year and in L946, 
ami a meeting of government experts was 
i onvened in 1947. In 1 948, the proposed 
new Conventions were considered b) the 
International Red Cross Conference at 
Stockholm, and the Final stage of the 
process was the convening ol a Diplo- 
matic Conference at Geneva in L 949. The 
I onference met from April to August of 
that year and gave the most careful 
attention to the roughly 400 articles of 
the lour Conventions. The United 
States had participated in all of the 
[>reliminar\ stapes of the drafting and was 
represented at the Conference by an able 
delegation, which included a Navy offi- 
cer. Two of the other members of the 
delegation, General Parker and General 
Dillon, subsequently served as Provost 
Marshals General of the Army and Air 
Force respectively. 

Fifty-nine countries, including all of 
the major powers, signed the four Con- 
ventions at Geneva. Since 1949, forty- 
eight states have ratified the treaties or 
acceded to them, including nine of the 
members of the North Atlantic Treaty 
Organization. Last year, somewhat to the 
surprise of those who had been con- 
cerned with the Conventions, Soviet Rus- 
sia and its satellites ratified the agree- 
ments, maintaining at that time their 
reservations, of which I shall have occa- 
sion to speak later. Communist China, 
which is not recognized by the majority 
of the nations of the world, is, I might 
add, not a party to the Conventions. The 
United States was shaken out of its 
lethargy by this measure, which, of 
course, may have been taken with a view 
to demonstrating to the world that the 
U.S.S.R. was more willing to undertake 
humanitarian obligations in war than the 
United States. The Conventions were 
considered by the United States Senate in 
the spring of this year and received its 
advice and consent by a unanimous vote 
of 77-0 in July. 6 The United States 
deposited its instrument of ratification 
on 2 August. The treaties will come into 



force as to the United States six months 
thereafter, or in February of next year. 

Our consideration of the contents of 

these four length) treaties is somewhat 

Simplified by the fact that certain 
articles arc common to all four of the 
Conventions. Two ol these articles 
describe in what instances the treaties 
are applicable. They apply to "all cases 
ol (Iceland war" or to "any other 
armed conflict, " that is, to undeclared 
wars or to enforcement actions con- 
ducted on behalf of the United Nations, 
it being understood, of course, that the 
treaties bind only the states which are 
parties to them in their relationship 
with other states which are parties. 
Because of the possibility that the force 
displayed in aggression will be so over- 
whelming that actual resistance will be 
made impossible or that occupation will 
be brought about through duress, as 
happened in Czechoslovakia in World 
War II, the agreements apply to occupa- 
tion of the territory of a party even if it 
meets with no armed resistance. The 
Geneva Conventions, with the exception 
of one common article, do not apply to 
civil war unless the parties to the con- 
flict agree to invoke them. The one 
exception is a very brief listing in 
Article 3 of particularly inhumane acts 
which are prohibited in armed conflicts 
"not of an international character." 

Another group of common articles 
deals with the activities of the Protect- 
ing Power. The Protecting Power is a 
neutral state which, on an impartial 
basis, looks after the interests of pro- 
tected persons— prisoners of war and 
civilian internees, for example— owing 
allegiance to one belligerent but within 
the power of the opposing belligerent. 
The Protecting Powers furnish, among 
other services, impartial inspectors and 
representatives— a type of function for 
which in these days it is admittedly 
difficult to find qualified neutrals. Be- 
cause, for one reason or another, 
prisoners often ceased to have the pro- 
tection of a Protecting Power or one 



223 



was not appointed by the country from 
whose armed forces the prisoners came, 
a provision has been inserted requiring a 
Detaining Power under such circum- 
stances to obtain a Protecting Power or 
the services of a humanitarian organiza- 
tion, such as the International Commit- 
tee of the Red Cross, to look after the 
interests of the prisoners and other 
protected persons. To this common 
article the Soviet Bloc made a somewhat 
surprising reservation. They said that 
they would not accept the services of a 
Protecting Power or humanitarian or- 
ganization to act on behalf of their 
personnel held by the enemy unless the 
designation was approved by them. 
While the institution of the Protecting 
Power also benefits the Detaining Power 
by making it possible to assure the 
world that prisoners are being treated in 
accordance with law, the Protecting 
Power acts primarily in the interest of 
prisoners and the power they serve. If, 
because of objections to the designated 
Protecting Power, the Communist states 
do not wish such protection for their 
soldiers in enemy hands, this is their 
business. 

It may cheer some of you to hear 
that the Conventions make no reference 
to war crimes— by that name. There was 
much controversy about this point at 
the Conference in 1949, and the upshot 
of it was that each of the four Conven- 
tions contains an article specifying cer- 
tain atrocious acts, such as the torturing 
of prisoners and civilians, as "grave 
breaches" of the Conventions. Ju- 
dicial safeguards are provided for per- 
sons charged with such acts. 11 Of 
course, these specific provisions do not 
affect the right of a belligerent, under 
customary international law, to try 
enemy personnel for war crimes other 
than "grave breaches" of the treaties. 

Now as to the contents of the four 
Conventions. I shall pass over the first 
of these, the Convention for the 
Amelioration of the Condition of the 
Wounded and Sick in Armed Forces in 



the Field, which I suspect would not be 
of particular concern to you. It contains 
the familiar stipulations, modified in 
some respects, about the respect and 
protection owed medical personnel and 
establishments, the wounded and sick, 
and the dead. The Convention for the 
Amelioration of the Condition of 
Wounded, Sick, and Shipwrecked Mem- 
bers of Armed Forces at Sea is of more 
immediate importance to the majority 
of you. The old green and white mark- 
ings of hospital ships have been replaced 
by white paint and red crosses on the 
hull and horizontal surfaces. 2 If hos- 
pital ships are to continue to receive the 
protection of the Convention at night, 
steps must be taken to make these 
distinctive markings visible, but there is 
no absolute requirement, for obvious 
reasons, that hospital ships be illumi- 
nated at night. Such ships may be 
controlled and searched by the parties 
to the conflict, and commissioners may 
be put on board to see that measures of 
control are carried out. Ships carrying 
medical supplies and medical aircraft are 
required to be respected by the belliger- 
ents only when prior arrangements have 
been made about their routes. The 
Convention provides great latitude in 
the control of these vessels, and I think 
you will find these provisions quite 
realistic. Coastal rescue craft were a real 
problem because of the possibility they 
would be the means of sending informa- 
tion back to the armed forces they 
serve. The requirements that such craft 
be respected and protected was there- 
fore made subject to the limitation "so 
far as operational requirements permit," 
thus making it possible, in necessary 
cases, to take offensive or restrictive 
action against these boats. 15 The re- 
ligious, medical, and hospital personnel 
of hospital ships are not held as 
prisoners of war but are to be sent back 
to their own forces at such time as the 
enemy commander considers it prac- 
ticable. 16 The wounded, sick, and ship- 
wrecked of a belligerent who fall into 



224 



< -ih'iiin hands are prisoners of war. 1 ' II 
forCCfl an put ashore, they become 

subject to the Convention regarding the 
Wounded and Sick in Armed Forces in 

the Field, and prisoners of war dis- 
embarked COme directh under the pro- 
tection of the Prisoners of War Conven- 
tion. 

Let us now turn to the Prisoners ol 
War Convention. Thanks to the Korean 

conflict I must be careful not to call it 

I war— we have had an opportunity to 
see this Convention in operation and to 
observe the extent to which it deals 
with a number of troublesome problems 
of current importance. Both parties to 
the hostilities declared that they would 
apply and abide by this treaty, and you 
will find specific references to it in the 
Armistice signed at Panmunjom in 
1953. 19 There is thus no reason to 
doubt that the Geneva Prisoners of War 
Convention of 1949 was the law govern- 
ing the treatment of prisoners during 
that period. 

Professor Lissitzyn has already re- 
ferred to guerrilla warfare as one aspect 
of the law to which Communists give 
much attention. A determined effort 
was made at the Geneva Conference to 
secure wider recognition for guerrillas, a 
recognition which would entitle them to 
be treated as prisoners of war upon 
capture. As you know, only members of 
the regular armed forces and of militia 
or volunteer corps fulfilling certain con- 
ditions were, under the law then exist- 
ing, entitled to receive the protection of 
the Geneva Prisoners of War Convention 
of 1929 and other customary and treaty 
law on prisoners of war. The require- 
ments laid on members of militias and 
volunteer corps were that they (1) be 
commanded by a person responsible for 
his subordinates, (2) wear a fixed dis- 
tinctive sign, (3) carry arms openly, and 
(4) comply with the law of war. Those 
countries in particular which had been 
occupied during World War II, Com- 
munist and non-Communist alike, 
wished wider recognition of guerrilla 



forces, the underground, and resistance 
movements, localise ol the obvious 
danger o! the "farmer by day, assassin 
by night" type, this pressure was re- 
sisted by a number of the larger military 
powers, including the United States and 
a comparatively innocuous provision 
found its way into the treaty. Despite 
some extravagant claims made lor 
Article 4, it does little to increase the 
categories of persons who are, as "law- 
ful belligerents," to come under the 
protection of the Prisoners of War Con- 
vention. Under the new treaty, members 
of militias and volunteer corps include 
members of organized resistance move- 
ments, but all of these persons must 
continue to comply with the four re- 
quirements I mentioned a moment ago. 
It seems improbable that most guerrilla 
forces or resistance movements will 
meet these four conditions, for by 
nature they do not, and indeed 
probably cannot, comply with the laws 
of war or even carry arms openly in all 
cases. Civilians who engage in hostilities 
will continue in practical effect to be 
subject to the same deterrent as before 
—the death penalty. Those who are not 
commanded by a responsible person, do 
not wear a distinctive sign, do not carry 
arms openly, and do not operate in 
conformity with law are not entitled to 
prisoner of war standing. Let me remind 
you, however, that another provision of 
the agreement requires that if there is 
any doubt about whether a person is a 
lawful belligerent who must be treated 
as a prisoner of war, he must continue 
to receive the protection of the Conven- 
tion until his status is determined by a 
competent tribunal. 20 The Conven- 
tions, viewed in the perspective of the 
Korean experience, thus provide the 
means of dealing with a firm hand with 
irregular forces. 

"Brainwashing" was a new term to 
come out of the Korean conflict, but 
prisoners have been tortured and mis- 
treated before, either in order to gain 
information or to secure confessions of 



225 



conduct which never took place. The 
only information a prisoner is required 
by law to give continues to be name, 
rank, and serial number, to which date 
of birth has now been added. The 
Secretary of Defense's Committee on 
Prisoners of War, which recently made 
its recommendations to Mr. Wilson in a 
report 2 * redolent of the punchy prose 
of Madison Avenue, agreed, as a matter 
of policy, that this was the most that an 
American should say to the enemy. The 
Convention unequivocally prohibits 
measures to secure further informa- 
tion: 

No physical or mental torutre, 
nor any other form of coercion, 
may be inflicted on prisoners of 
war to secure from them informa- 
tion of any kind whatever. 
Prisoners of war who refuse to 
answer may not be threatened, 
insulted, or exposed to unpleasant 
or disadvantageous treatment of 
any kind. 2 
The provision that the Detaining Power 
is to encourage "the practice of intellec- 
tual, educational, and recreational pur- 
suits" 2 3 certainly does not offer a carte 
blanche for the indoctrination of pris- 
oners or for the compulsory singing of 
"Solidarity." You may have heard of 
the British officer who took the quiz 
after a Communist propaganda lecture 
and replied to the question, "What is 
the highest form of the class struggle?" 
by writing in, "The highest form of the 
class struggle is riding first class on a 
third class ticket." 

Starvation of prisoners is, of course, 
completely out. The old standard was 
that prisoners had to be fed the same 
rations as base troops of the Detaining 
Power. Because of the difficulty Ameri- 
can and British persons had with fish- 
head and rice diets, the duty is now that 
the prisoners be fed rations sufficient to 
keep them in good health, without loss 
of weight. Account is also taken of their 
habitual diet. Collective disciplinary 
measures affecting food are pro- 



hibited. 24 A provision that all prisoners 
are to be treated alike, without adverse 
distinction, 25 seems to me to raise a 
question about the legality of using 
adequate rations as an inducement to 
get prisoners to accept the political 
beliefs of their captors. The starvation 
of prisoners and the use of the carrot 
portion of the "carrot and stick" tech- 
nique were both unlawful devices used 
by the Communists. Like the standard 
of feeding, the standard of housing for 
prisoners held by the Chinese and South 
Koreans fell far below that set by law, 
even if account is taken of the primitive 
conditions of Korea. Such premises 
must conform to the housing of troops 
of the Detaining Power in the same 
region and must in addition not be 
damp or otherwise prejudicial to 
health. 2 6 

The difficulty which the United 
States had in getting lists of prisoners 
and of the dead from the Communists is 
familiar to you. The Prisoners of War 
Convention contains admirably detailed 
provisions on the procedure for getting 
this information back. 27 Until lists were 
exchanged in connection with the re- 
patriation of prisoners, the North 
Koreans had supplied only two lists, 
covering in all 110 names. 

Communist soldiers held by the 
forces of the Unified Command in 
Korea presented their problems to us. 
The unfortunate incident at Koje-do 
reminded the United Nations Command 
that it is desirable to maintain order in 
camps. The Convention provides the 
means of doing this. If the action which 
seems desirable is the segregation of the 
militant faction from the rest of the 
prisoners, this can be done. Two articles 
might, on hasty reading, be thought to 
lead to a contrary conclusion. One of 
these requires that there be no adverse 
distinction based on race, nationality, 
religious belief, or political opinions. 
The second provides that prisoners must 
be assembled in camps or compounds 
according to their nationality, language, 



226 



and customs and that prisoners ar»' not 
to l>c separated Irom other persons 
belonging to the armed forces with 
which the) were serving, except with 
their consent. Now, segregation based 
solel\ on abstract political tenets, on 
whether a prisoner professes to be a 
1 ommunist l'art\ member or not, i> 

improper, except if desired by one or 
the other group of prisoners. If belief, 
however, ripens into overt action— into 
coercion, physical violence, riots, or 
intimidation the segregation which 
must he effected is not based on politi- 
cal opinions but on conduct and there- 
fore does not fall within the prohibition 
of the Convention. In any case, it is 
doubtful whether mere segregation can 
be called "adverse distinction." The 
Detaining Power may, moreover, desire 
to punish certain individuals for vio- 
lence against fellow prisoners. It may 
invoke either disciplinary or judicial 
proceedings, subject to a great range of 
procedural safeguards written into the 
Convention. In short, the Geneva 
Conventions offer no excuse for the 
existence of disorder in camps. 

On the important issue of repatria- 
tion of prisoners of war on the close of 
hostilities, the Senate, in connection 
with its consideration of the treaties, 
made it clear that there had been no 
change in the position of the United 
States originally taken during the 
Korean conflict. Article 118, requiring 
that prisoners "shall be released and 
repatriated without delay after the 
cessation of active hostilities" was con- 
strued as not precluding a Detaining 
Power from granting asylum to pris- 
oners who do not desire to be repatri- 
ated. The positions taken by the Execu- 
tive Branch, by the Senate Foreign 
Relations Committee, and by the Senate 
during the recent consideration of the 
treaties are at one in emphasizing that a 
grant of asylum is fully consistent with 
Article 118 and other provisions of the 
Prisoners of War Convention. 3 1 Since 
this same view is held by a majority of 



the members of the United Nations as 

well, mere seems to he no doubt that 
the principle is full) established in the 
international law ol the West, despite 

the vigorous dissents of the Communist 
Btates 

This brief surve\ of some of the legal 
problems of the Korean conflict and of 
the response of the Geneva Conventions 
of 1949 to these indicates that the 
agreements have dealt with the im- 
portant questions of modern warfare, 
even modern warfare conducted by bar- 
baric and cruel enemies, and that they 
have laid down standards on these mat- 
ters which are reasonable, as well as 
advantageous to the United States. Let 
me mention now several further issues 
which are likely to assume some 
prominence in a future conflict, 
especially one with Communist states. 

In addition to the Russian and Com- 
munist bloc reservation which was men- 
tioned earlier, there are two further 
such reservations made by all the Com- 
munist states. The formula on responsi- 
bility for mistreatment of prisoners who 
had been transferred by one power to 
another state's custody which was 
worked out at Geneva was that the state 
to whom the persons in question were 
transferred also acquired legal responsi- 
bility for their proper treatment. The 
extent of the transferor's liability there- 
after is to call for compliance with the 
Convention and for the return of the 
prisoners if the transferee power then 
fails to abide by the treaty. 32 The 
Communist position, expressed in their 
reservation, is that the transferring state 
and the state assuming custody should 
be liable for violations of the Conven- 
tion. This point is not of great moment, 
and the Russian position may, in any 
case, seem more reasonable to you than 
our own. 

The real booby-trap is hidden in a 
third Communist reservation about war 
criminals. Here, I must pause for a word 
or so of explanation. After World War 
II, military personnel charged with war 



227 



crimes were not tried under the pro- 
cedural safeguards of the Geneva Pris- 
oners of War Convention of 1929. You 
will recall that this question arose in 
connection with the trial of General 
Yamashita and that the Government's 
position in this regard was upheld by 
the Supreme Court. 3 The new Conven- 
tion requires that a prisoner of war can 
be validly sentenced only if the sentence 
"has been pronounced by the same 
courts according to the same procedure 
as in the case of members of the armed 
forces of the Detaining Power," which 
would in our case be the Uniform Code 
of Military Justice. Article 85 of the 
Convention stipulates: 

Prisoners of war prosecuted 
under the laws of the Detaining 
Power for acts committed prior to 
capture shall retain, even if con- 
victed, the benefits of the present 
Convention. 
In short, a prisoner of war convicted of 
a war crime continues in a prisoner of 
war status after conviction. Regarding 
this, the U.S.S.R. and other Communist 
states stated that they would not con- 
sider themselves bound to extend the 
Convention to prisoners convicted "in 
accordance with the principles of the 
Nuremberg trial, for war crimes and 
crimes against humanity" and that such 
persons would be treated like other 
common criminals. The implications of 
this statement are obvious. The Commu- 
nist states are very favorably disposed 
toward the doctrine of war criminality. 
During the Korean hostilities, the 
enemy informed people taken as pris- 
oners that they were really war crimi- 
nals but that a liberal policy would be 
pursued toward them so long as they 
acted properly. If persons are tried by 
the reserving states for war crimes and 
convicted, the reservation means that 
these individuals may disappear com- 
pletely from sight. There will be no 
duty to account for them or to repatri- 
ate them. There will be no restriction on 
the conditions of their confinement, the 



labor they -are required to perform, or 
on the brutalities to which the De- 
taining Power may expose them. In- 
deed, the very fact that conviction 
means oblivion may very well encourage 
such prosecutions. 

While we are speaking of war crimes, 
we should note that the articles to 
which reference has just been made 
probably preclude new Nuremberg or 
Tokyo trials of military personnel held 
as prisoners of war by the United States 
and charged with war crimes. The rea- 
son for this is that if a captured officer, 
for example, must be tried under the 
same law and by the same tribunal as an 
officer of the United States Armed 
Forces, he must be tried under the 
Uniform Code of Military Justice. The 
Code provides no authorization for in- 
ternational trials of American personnel 
and, notably on questions of evidence, 
imposes more rigid standards than were 
applied in the war crimes cases. Whether 
this change in the law is wise or not I 
leave it to you to decide. 

On the question of the employment 
of prisoners of war, the Convention 
contains a new formula which describes 
the work prisoners can be required to 
perform, 4 as contrasted with the state- 
ment in the 1929 Convention, which 
stated for what purposes prisoners can- 
not be used. The new tests are some- 
what difficult and un wieldly to apply, 
since most of them require a determina- 
tion whether a given type of work has 
"no military character or purpose." 
While the new article seems to be much 
more restrictive than the old, there is 
evidence that the Geneva Conference 
was only attempting, with doubtful 
success, a more precise formulation of 
the old standard. Since there is very 
little guidance of a general nature I can 
give you on this article, a warning about 
this possible pitfall should probably 
suffice. See your lawyer. 

Some consideration of the Geneva 
Civilians Convention really deserves no 
apology. The Navy has in the past had 



228 



extensive responsibilities !<>r civil affairs 
.md military government, and man) 
\aw officers lu»\ < served w i t h \rm\ 
forces m administering occupied areas. 
Planners must be aware of our legal 
responsibilities to the civilian popula- 
tions w <■ encounter. Many Navy officers 
■shore, such as port captains, will have 
dealings with the life of an occupied 
area. 

Prior to the adoption of the Geneva 
Civilians Convention of 1949, there was 
only a rudimentary body of law re- 
garding the protection of civilians. 
There were some stipulations in The 
Hague Convention No. IV of 1907 
regarding warfare on land, dealing with 
such matters as respect for family honor 
and rights and with the requisition and 
seizure of property from the civilian 
population. When civilians were in- 
terned in occupied areas, we considered 
ourselves under an obligation to apply 
to them by analogy the provisions of 
the Prisoners of War Convention of 
1929. There was no international law at 
all about the treatment of aliens in- 
terned in the United States. All this is 
now changed. 

The Civilians Convention contains 
five general sections, each dealing with a 
different group of people. The first 
deals with the general protection of 
populations against certain conse- 
quences of war. 5 A second contains 
provisions common to the territories of 
parties to the conflict and to occupied 
territories. The third covers aliens in 
the territory of a party to the conflict— 
for example, enemy aiiens who find 
themselves in the United States in time 
of war. A fourth group of articles 
refers to occupied territories only, 
and a fifth consists of regulations for 
treatment of internees, who may be 
either enemy aliens interned in the 
United States or civilians interned for 
security reasons in occupied areas. 3 

The section of the Convention deal- 
ing with the "General Protection of 
Populations Against Certain Conse- 



quences <>l W ar might be described as a 
Wounded and Siek Convention within 
the Civilians Convention. Provisions are 

included which would permit the bel- 
ligerents, by agreement, to establish 
hospital and safety /ones in which the 
sick and wounded, certain women, and 
children may be accommodated. 40 Neu- 
tralized /ones for the accommodation 
of civilians taking no part in the war 
may also be established by agree- 
ment. ! This particular provision prob- 
ably overlaps with the "open city' 
concept. For the first time civilian 
hospitals, civilian medical transports and 
aircraft, and civilian hospital personnel 
are protected by the Red Cross emblem, 
and they are granted protection from 
attack along the same lines as the 
provisions on military hospitals and 
medical personnel in the Wounded and 
Sick Convention. 2 Other stipulations 
cover the shipment of relief consign- 
ments, the care of children, and family 
correspondence. 

The following section, which has 
application to the territory of parties to 
the conflict and to occupied territory, is 
basically a bill of rights for enemy 
civilians in time of war. "Human rights" 
is, I realize, a dirty word these days, and 
I shall therefore refrain from charac- 
terizing these provisions as a human 
rights convention. To some degree, 
these articles echo The Hague Regula- 
tions of 1907. Protected persons are to 
be humanely treated, without distinc- 
tion based on race, religion, or political 
opinion. Coercion may not be used 
against them to obtain information. 5 
Physical suffering, extermination, 
murder, torture, biological experi- 
ments—all familiar with World War II — 
are forbidden. 46 Collective punishments 
are forbidden. Pillage is prohibited. Re- 
prisals may not be taken against pro- 
tected persons and their property, and 
the taking of hostages is forbidden 
also. These curt prohibitions put an 
end to one of the questions which 
plagued war crimes tribunals after World 



229 



War II; that is, whether hostages could 
be executed. The provision on reprisals, 
incidentally, has its counterpart in the 
Prisoners of War Convention. While 
the prohibitions on reprisals take away 
one means of securing compliance with 
the law by the enemy, they likewise 
remove an excuse upon which belliger- 
ents had often relied in the past for 
flagrant violation of the law. 

The section applying to "Aliens in 
the Territory of a Party to the Con- 
flict relates to enemy aliens who 
might be in the United States during a 
war. Since civil agencies, such as the 
Department of Justice, are concerned 
with these questions, I shall pass to the 
portion of the Convention dealing with 
occupied territory, a section which is 
supplementary to The Hague Regula- 
tions. 

An interesting provision of this sec- 
tion, which finds its source in the 
openhandedness of the United States as 
well as in the activities of the Axis 
occupants, is that requiring the occupy- 
ing power to ensure the food and 
medical supplies of the population. 50 
The article goes on to say: 

... it (the occupant) should, in 
particular bring in the necessary 
foodstuffs, medical stores and 
other articles if the resources of 
the occupied territory are inade- 
quate. 
This situation, which on the first read- 
ing makes logisticians turn pale, is quali- 
fied by the words "To the fullest extent 
of the means available to it . . .", which, 
I think you will agree, offers consider- 
able latitude to the occupying power. 
Certainly the obligation is not an un- 
qualified one, and the article does not 
require that Navy shipping be diverted 
from military uses to carry food to 
foreign civilians. 

The provisions on the labor of 
civilians will be of concern to the Navy 
in port areas. Inhabitants of occupied 
territory may be required to perform 
only "work which is necessary either for 



the needs of the army of occupation, or 
for the public utility services, or for the 
feeding, sheltering, clothing, transporta- 
tion or health of the population of the 
occupied territory." 51 This formula 
bears comparison with the provision on 
prisoner of war labor, 5 2 of which I have 
spoken, and a later stipulation on the 
labor of interned civilians. 5 Deporta- 
tions and measures designed to induce 
civilians to work for the occupant are 
forbidden. So, also, is compelling such 
persons to serve in the armed forces or 
auxiliary forces of the occupant and 
pressure or propaganda to secure even 
voluntary enlistments. 

The occupant is placed under certain 
obligations concerning the operation of 
relief schemes for the civilian popula- 
tion. 55 The medical care of the popula- 
tion is to be ensured and maintained by 
the occupant; civilian hospitals may be 
requisitioned only temporarily and only 
in cases of urgent military necessity. 56 

A comprehensive system of judicial 
safeguards is provided for the occupied 
area. The occupant may, as customary 
law had previously recognized, lay down 
rules for the conduct of civilians, and 
this new legislation must be published 
and brought to the attention of the 
population. 57 There is a somewhat 
peculiar provision that breaches of these 
penal provisions may be prosecuted 
before "properly constituted, nonpoliti- 
cal military courts." 58 I do not know 
what a "political military court" would 
be, but the article does raise some ques- 
tion about the legality in the future of the 
civilian tribunals we operated in Ger- 
many. Imprisonment is the maximum 
punishment for offenses which are not 
serious. The death penalty may be 
inflicted for such acts as espionage or 
sabotage, "provided that such offenses 
were punishable by death under the law 
of the occupied territory in force before 
the occupation began." 5 The United 
States entered a reservation on this last 
provision, because it feared that the last 
thing a withdrawing sovereign might do, 



230 



before being driven from it> territory l>\ 
I intcd States forces, would be to 
abolish the death penalty. We are there- 
fore not Bubjecl to this limitation. 

The final substantive section deals 
with "Regulations lor the Treatment of 
lnte^nees. ,,60 These are largely an 
adaption to the particular situation of 
Civilians of the provisions of interna- 
tional law regarding prisoners of war. 
Despite this general similarity, the dil- 
terences between the Civilians and Pris- 
oners ol War Conventions arc sometimes 
quite striking, and one cannot rely on 
the general principle that civilian in- 
ternees and prisoners of war are treated 
in the same way. 

This summary of some of the salient 
features of the Geneva Conventions of 
1949 leaves unsaid a vast amount about 
the contents of the agreements. It now 
remains to add a word or so about why 
the United States is a party to the 
agreements. 

In the first place, the Conventions 
are largely but a restatement of what 
has hitherto been the policy of the 
United States and of what our current 
practice is. In preparing the Conventions 
for consideration by the Senate Foreign 
Relations Committee, we looked into 
United States practice on each article. 
In the vast majority of cases, no change 
in our arrangements seemed necessary. 
Even if we were to denounce these 
agreements, we would continue to act in 
the same way in almost all particulars. 

Secondly, the Conventions are non- 
political, technical, and humanitarian. It 
is this circumstance that holds out some 
hope that the agreements will gain 
acceptance, not just on paper but in 
men's hearts, in both the Free World 
and the Communist World. This thought 
in turn points to the undesirabiJity of 
trying to work political gimmicks with 
the Conventions. Here are four interna- 
tional agreements which should be 
played straight. 

In the third place, the existence of an 
agreed international standard is 



important from a number ol stand- 
points. We have now a fixed, objective 
standard against which to measure a 
possible enemy's conduct. There can be 
a dispute about the facts, but there can 
be very little quibbling about what the 
law itself is. On the lowest level and 
from the position ol greatest cynicism, 
we can say that the Conventions are an 
aid to psychological warfare because 
they may permit us to charge the enemy 
with violations of rules to which it has 
solemnly pledged its word. We might, of 
course, wish to have had greater cer- 
tainty on the matters as to which the 
Communist states reserved. Two of 
these do not seem to be of major 
consequence, but the matter of post- 
conviction treatment of war criminals is 
very troublesome. Our reaction to these 
reservations was to propose to agree to 
disagree on these points, while entering 
into treaty relationships on all other 
provisions of the treaties. 

It would be improper to hazard a 
guess about the probability that the 
Geneva Conventions will be complied 
with under all circumstances by all 
countries. As between the East and 
West, certain features of the Conven- 
tions are inducements to compliance. 
The Conventions are precise; if they are 
complex, it is only because the drafts- 
men attempted to nail down every 
possible loose end. They confer bene- 
fits, on a basis of reciprocity and 
equality, on both belligerents. They are 
accepted specifically by the majority of 
civilized nations. They are, if adminis- 
tered in an honest fashion, above inter- 
national politics. They do not, however, 
guarantee compliance any more than do 
national laws, which may be ineffectual 
to curb a flood of violations. 

If the enemy violates the Conven- 
tions, what recourse have we? Reprisals 
against protected persons are now pro- 
hibited, because, as we have seen, they 
promoted the complete disappearance 
of legal restraints in warfare, as well as 
penalized the innocent for the acts of 



231 



the guilty. However, if the enemy 
adopts a strained interpretation of a 
provision in order to diminish the rights 
of prisoners, there seems to be no legal 
prohibition on our adopting a like con- 
struction. Widespread and flagrant dis- 
regard for the express provisions of the 
treaties would require the United States 
to reconsider its position toward the 
Conventions. While denunciation of the 
Conventions by a belligerent during 
hostilities is forbidden, 61 this prohibi- 
tion cannot grant a license to a belliger- 
ent to violate the law while demanding 
strict compliance from the enemy. 

The Geneva Conventions of 1949 
will come into force as to the United 
States early in February of next year, 
six months after our instrument of 
ratification was deposited. They will, 



like other treaties, be as much a part of 
United States law as the Career Com- 
pensation Act or the Uniform Code of 
Military Justice. Violations of the 
Convention will be punishable as vio- 
lations of the Uniform Code of Military 

Justice. 

If respect for human life and the 

establishment of the rule of law are 
among our long-term objectives, the 
Geneva Conventions must constitute 
one step toward these goals, which we 
and the great majority of states hold in 
common. If, on the other hand, we 
reject an honest application of these 
treaties on the ground that the ends 
justify the means, we have taken the 
first step toward the acceptance of 
Communism and the desertion of our 



own institutions. 



63 



NOTES 



1. The four Conventions, adopted on 12 August 1949, are the Geneva Convention for the 
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, the 
Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and 
Shipwrecked Members of Armed Forces at Sea, the Geneva Convention relative to the Treatment 
of Prisoners of War, and the Geneva Convention relative to the Protection of Civilian Persons in 
time of War. They are reprinted in Department of State Publications 3938 (1950), in Executives 
D, E, F, and G, 82d Cong., 1st Sess. (1951), and as a Department of the Army pamphlet. The 
texts are also reprinted, with some deletions, in 47 Naval War College, International Law 
Documents 81-218 (1950-51). 

2. A condensed text appears in 47 Naval War College, International Law Documents 31-35 
(1950-51), and a more complete one in Naval War College, International Law Situations, 1908, at 
170-188. 

3. Texts, with some omissions, in 47 Naval War College, International Law Documents 
36-75 (1950-51), and in Naval War College, International Law Situations, 1908, at 201-210. 

4. This was the view of the Nuremberg Tribunal. See Nazi Conspiracy and Aggression, 
Opinion and Judgment 83 (1947), 45 Naval War College, International Law Documents 281-2 
(1946-47). 

5. See 47 Naval War College, International Law Documents 5-7 (1950-51). 

6. 101 Congressional Record 8537-8552 (daily ed., 6 July 1955). 

7. Arts. 2/2/2/2 and 3/3/3/3 (articles common to the four Conventions are listed in this 
fashion, in the order in which the treaties are listed in note 1 above). 

8. Arts. 8/8/8/9, 9/9/9/10, 10/10/10/11, and 11/11/11/12. 

9. Art. 10/10/10/11. 

10. Art. 50/51/130/147. 

11. Art. 49/50/129/146. 

12. Art. 43. 

13. Art. 31. 

14. Arts. 38 and 39. 

15. Art. 27. 

16. Arts. 36 and 37. 

17. Art. 16. 

18. Art. 4. 

19. Terms of reference for Neutral Nations Repatriation Commission, United States Treaties 
and Other International Acts Series 2782. 



9*9 

mt%9mt 

20. \rt. f>. 

21. POl : Hie Fight Continues After the Battle 21-22(1955). 

22. \rt. 17. 

23. \rt. 38. 

2 1. \rt. 26. 

25. \rt. 16. 

26. \rt. 22. 

27. Arts. 122 and L23. 

28. Art. 16. 

29. Vrt. 22. 

30. Arts. 82-108. 

31. 101 Congressional Record 8548 (daUy ed., 6 July 1955). 

32. Art. 12. The corresponding article of the Civilians Convention is Art. 45. 

33. In re Yamashita, 327 U.S. 1 (1946). 

34. Arts. 50 and 52. 

35. Part II. 

36. Part III, Section I. 

37. Part III, Section II. 

38. Part III, Section III. 

39. Part III, Section IV. 

40. Art. 14. 

41. Art. 15. 

42. Arts. 18-22. 

43. Part III, Section I. 

44. Art. 27. 

45. Art. 31. 

46. Art. 32. 

47. Arts. 33 and 34 

48. Art. 13, Prisoners of War Convention. 

49. Part III, Section II. 

50. Art. 55. 

51. Art. 51. 

52. Arts. 50 and 52, Prisoners of War Convention. 

53. Art. 95. 

54. Art. 51. 

55. Arts. 59-62. 

56. Arts. 56 and 57. 

57. Arts. 64 and 65. 

58. Art. 66. 

59. Art. 68. 

60. Part III, Section IV. 

61. Art. 63/62/142/158. 

62. On 2 February 1956. 

63. The literature on the Geneva Conventions of 1949 is already extensive. Two of the best 
and more readily available articles are Pictet, the New Geneva Conventions for the Protection of 
War Victims, 45 American Journal of International Law 462 (1951), and Yingling and Ginnane, 
the Geneva Conventions of 1949, 46 id. 393 (1952). 

— t 



233 



THE LAW OF WAR 



Robert W. Tucker 



Any realistic discussion of the 
present status of the law of war must 
begin by taking note of the skepticism 
with which this law is generally regarded 
today. In view of the experience of the 
two great wars of this century there are 
many who doubt the possibility that 
future wars can be subject to effective 
legal restraints. Even more, there are 
many who question the continued 
validity today of the rules which have 
governed the conduct of hostilities here- 
tofore. In the remarks to follow, I 
would like to examine some of the 
reasons for this present attitude of 
skepticism; to indicate some of the 
effects upon the traditional laws of war 
of what we have come to call "total 
war." In so doing it may appear that I, 
too, am skeptical of the continued 
utility of a law regulating the conduct 
of warfare. In order to avoid possible 
misunderstanding, I should like to make 
quite clear that I consider the tradi- 
tional law of war one of the most 
worthwhile achievements of the 18th 
and 19th centuries, and am convinced 
that the recent trend of belligerents in 
abandoning the traditional restraints 
upon war has led— directly or indirectly 
—to many of the seemingly intractable 
problems of contemporary world poli- 
tics. At the same time, I do not believe 
that it would serve a useful purpose if 
we failed to recognize the very danger- 
ous situation we face in the methods 



and practices of total war. However 
necessary a change from the present 
trend may be— and I consider such a 
change to be an urgent necessity— the 
fact remains that we must begin with as 
clear a view as is possible of where we 
are today and where we will most likely 
go if this present trend is not altered in 
some way. 

On first consideration, it is rather 
curious that the present attitude of 
disbelief in the utility of the law of war 
has not been substantially dissipated 
either by the war crimes trials that 
followed World War II or by the conclu- 
sion of the 1949 Geneva Conventions 
For The Protection of War Victims. 
Still, the war crimes trials were an 
unparalleled event in the modern period 
of international relations. The juris- 
prudence resulting from the trials has 
been considerable. In addition, it is no 
exaggeration to say that the 1949 
Geneva Conventions constitute the most 
ambitious endeavor in international 
legislation on the regulation of war since 
the 1907 Hague Conventions. 

Despite these recent events, the con- 
viction persists that in a future war, 
especially one characterized by deep 
ideological schisms, even the most ele- 
mentary prohibitions of the law of war 
will be abandoned. One reason for this 
would appear to stem from the fact that 
the vast majority of the war crimes trials 
dealt primarily with charges of mistreat- 



234 



men! of prisoners ol war and of civilians 
in occupied territory. The trials provide 
little guidance on the legitimate 
weapons and methods 1 * »r the actual 
conduct of hostilities lor example, 
mere is no1 a Bingle significant judgment 
dealing with the present legal limita- 
tions, il an\ , on aerial bombardment. 
Hence, there is the feeling that the war 

crimes trials and the l ( )49 Geneva Con- 
ventions, while clarif) inj_ r and con- 
tributing to the rules of war governing 

the treatment of individuals who fall 
under the control of a belligerent, have 
contributed very little to the law 
governing the actions a belligerent may 
take against individuals— whether com- 
batants or noncombatants— who have 
not I alien under his control. And, con- 
sidering recent developments in 
weapons of mass destruction, some have 
questioned the relevance of further 
effort directed only toward the better 
protection of war victims. The rather 
facetious suggestion has been made that 
the real problem remaining to be solved 
concerns the possible means of becom- 
ing a war victim. 

More serious, however, is the sugges- 
tion that the effectiveness of rules 
whose purpose is to restrain belligerents 
in their treatment of war victims may be 
dependent in large measure upon the 
possibility of retaining some restraints 
upon the actual conduct of hostilities. It 
is argued that where these latter re- 
straints are absent, the likelihood that 
belligerents will abide by the law 
governing the treatment of war victims 
is accordingly diminished. Whether and 
to what extent this argument is sound is 
difficult to say, though I am of the 
opinion that it should not be ignored. It 
is indeed difficult to believe that, on the 
one hand, belligerents will continue to 
cast off all remaining restraints on the 
actual conduct of hostilities and, on the 
other hand, scrupulously meet their 
obligations to provide humane treat- 
ment to the victims of war. 

In any event, it is certainly true that 



at present there is a marked discrepancy 
between ellorts to insure protection to 
victims <»l war and tin: virtual abandon- 
ment ol any further effort to regulate 
the actual conduct of hostilities. While 
not minimizing the importance of the 
former rules, our principal concern in 
this lecture is with the latter rules; i.e., 
the rules that traditionally have regu- 
lated the actual conduct of hostilities 
between belligerents, as well as with the 
traditional rules regulating the relations 
between belligerents and neutrals. 1 

The first problem that arises in the 
attempt to assess the present status of 
this law concerns the effects of the two 
world wars. Although exaggerated 
accounts of the lawlessness of the 
belligerents frequently have been given, 
there is no denying the fact that both 
wars witnessed the widespread violation 
of many of the traditional rules. It is 
important to observe that reference is 
not made here to occasional violations 
of the rules of war, since such occa- 
sional violations do not substantially 
affect the binding force of law. How- 
ever, the continuous violation of certain 
rules is clearly a different matter. Do 
rules of war, whether customary or 
conventional, cease to be valid (binding) 
for the reason that over a given period 
of time they are neither obeyed nor 
applied by belligerents? 

As a general, and rather theoretical, 
proposition it is easy enough to say that 
the validity, or binding quality, of law 
must depend upon a minimum degree of 
effectiveness. The difficulty occurs 
when one descends from the abstract 
proposition to the concrete case and 
asks: has this specific rule of warfare 
ceased to be valid for the reason that 
over a certain period of time it has been 
ineffective, on the whole, in regulating 
belligerent behavior? I am afraid that I 
am unable to concur with the attitude 
of some writers who consider the tradi- 
tional law, despite the experience of 
two World Wars, either as unchanged in 
content or as in a temporary state of 



235 



suspension— awaiting the end of what is 
considered to be the present period of 
lawlessness. In particular, it does not 
seem possible to consider the laws of 
naval warfare valid prior to World War I 
as remaining unchanged today, in view 
of the practice of the naval belligerents 
during the two World Wars. Unfortu- 
nately, however, there is no easy and 
reliable method of determining the ex- 
tent to which the traditional law of 
naval warfare has been invalidated by 
recent practices, if for no other reason 
than the fact that in international law 
there is no one competent agency, no 
superior organ standing above the vari- 
ous states, to which we may turn for an 
authoritative answer. Instead, we must 
usually undertake the laborious task of 
examining the actual practices of states, 
the occasional opinions expressed by 
governments, the scattered— and perhaps 
not always enlightening— decisions of 
military courts and tribunals, and the 
opinions— for what they may be worth 
—of international jurists. 

Even after painstaking search, no 
clear and reliable answer may emerge. 
Who can say today with any real assur- 
ance that the rule forbidding the 
destruction of enemy merchant vessels 
without first placing passengers and 
crew in a place of safety remains bind- 
ing upon belligerents? Throughout 
World War II, Germany in the Atlantic 
and the United States in the Pacific 
resorted to unrestricted submarine war- 
fare against enemy merchant vessels; the 
latter were attacked and destroyed with- 
out warning and without prior attempt 
to place passengers and crew in a place 
of safety. Great Britain also resorted to 
the practice of destroying enemy mer- 
chant shipping on sight, though it made 
the effort to limit this practice as far as 
possible. Although the attempt was 
made by most belligerents to base the 
measures taken against enemy merchant 
shipping upon the right of reprisal, 
research has failed to indicate any effort 
on the part of the United States to 



provide legal justification for waging 
unrestricted submarine warfare in the 
Pacific. 

A survey of the war crimes trials fails 
to turn up any cases in which de- 
fendants were charged with waging un- 
restricted submarine warfare against 
enemy merchant shipping, the one ex- 
ception being the charge brought against 
Admiral Doenitz before the Interna- 
tional Military Tribunal at Nuremberg. 
Admiral Doenitz was acquitted by the 
Tribunal of giving the order to wage 
unrestricted submarine warfare against 
British merchant vessels, for the reasons 
that shortly after the outbreak of war 
the British Admiralty "armed its mer- 
chant vessels, in many cases convoyed 
them with armed escort, gave orders to 
send position reports upon sighting sub- 
marines, thus integrating merchant ves- 
sels into the warning network of naval 
intelligence. On 1 October, the British 
Admiralty announced that British mer- 
chant ships had been ordered to ram 
U-boats if possible." 2 It should be 
noted, however, that the Tribunal did 
not state that the prohibition against 
sinking enemy merchant vessels without 
warning and without having first placed 
passengers and crew in a place of safety 
was no longer valid. On the contrary, 
the most reasonable inference is that the 
Tribunal did regard the prohibition as 
remaining binding upon belligerents, 
though it acquitted Doenitz of the 
charge in view of the circumstances 
already noted. 

If we turn to the opinions of writers, 
we find that a majority still appear to 
assume that the law forbids unrestricted 
warfare against enemy merchant ship- 
ping. H.A. Smith is representative of 
these international jurists when he 
writes that "Notwithstanding the ex- 
perience of the Second World War, it 
must be emphasized that the principle 
thus laid down (i.e., forbidding un- 
restricted warfare against enemy mer- 
chant shipping) is a binding rule of the 
law of nations." 3 However, a minority 



2;i6 



of writers serious!) questions the con- 
tinued vali<lit\ of the prohibition under 

i 4 

discussion. 

Ill i> uncertainty over the present 

Status (»l much of the traditional law <>l 

naval warfare i> increased when wc 
consider that during both World Wars 
tin- major naval belligerents deemed it 
necessary , almost from tin* opening 
Btages ol hostilities, to resort to mea- 
sures whose legal justification as judged 
l»\ the traditional law— could re>t only 

upon the belligerent right of reprisal. 
1 he declaration of operational (war) 
/ones within which enemy and neutral 
shipping alike were either banned en- 
tirely or were subject to special hazards, 
the abolition— in fact— of the traditional 
law of blockade and contraband, the 
indiscriminate laying of mines— these 
and many other measures were based 
for the most part on the right of 
reprisal. We are not so much concerned 
here with the question as to whether in 
a specific instance the resort to reprisals 
was justified, particularly when such 
reprisals operated in the main against 
neutral shipping. Nor are we concerned 
in this context with the question of 
ultimate responsibility for the initiation 
of this endless series of reprisals— a 
difficult and controversial matter. We 
are concerned with the fact that the 
constant resort to reprisals in naval 
warfare provided a method for evading 
the restrictions imposed by the tradi- 
tional law, and, perhaps, for effecting 
changes in this law. 

The explanation of this frequent 
disregard of the law, either openly 
or— more often— under the guise of re- 
prisals, is to be found in the far-reaching 
transformation of the environment in 
which the traditional law operated and 
from which it derived much of its 
meaning and significance. For the tradi- 
tional rules of warfare, and particularly 
the rules regulating warfare at sea, were 
largely a product of the nineteenth 
century. This traditional law pre- 
supposed a certain type of state and a 



certain type of war. The conception of 
the state was not necessarily demo- 
cratic, but it was a state with limited 
powers. It presupposed economic 

liberalism, with a clear distinction to be 
drawn between the activities of the state 
and the activities of the private indi- 
vidual. The nineteenth century concep- 
tion of war was that of a limited war, 
limited not only in terms of the number 
of belligerents involved in any conflict, 
but also limited in terms of the fraction 
of each belligerent's population which 
participated in and closely identified 
itself with the war effort. Finally, and 
most important, this conception of war 
presupposed limited war aims on the 
part of the belligerents. These limited 
war aims allowed, in turn, the introduc- 
tion of restraints upon the methods by 
which these aims might be pursued. 

The general nature of the transforma- 
tion from the nineteenth century en- 
vironment to the contemporary environ- 
ment has been too frequently, and too 
thoroughly, analyzed to warrant any 
detailed comment here. It is sufficient 
for our purposes simply to note that 
almost all of the conditions presupposed 
by the traditional law have either been 
swept away or have been placed in 
serious question. The effects of this 
radically changed environment on the 
traditional law should be examined not 
only in relation to the numerous 
specific rules regulating war's conduct 
but, first and foremost, in relation to 
the general principles of the law of war; 
that is, in relation to those general 
principles that have always been con- 
sidered as forming the bases of, and as 
giving meaning to, the more specific and 
detailed rules. 

Perhaps the most important of these 
general principles is that principle 
which distinguishes between combatants 
and noncombatants. That the non- 
combatant population is not to be made 
the object of direct attack and— so far as 
military necessity permits— is to be 
spared in person and property during 



237 



hostilities, has long been considered the 
outstanding achievement and the vital 
principle of the law of war. In 1923, the 
American proposals relating to the 
legitimate limits to aerial bombardment 
were introduced by the following state- 
ment: 

Among the elementary princi- 
ples which the development of 
modern rules of warfare, running 
through several centuries, has 
been designed to establish and 
confirm, the principle most funda- 
mental in character, the ob- 
servance of which the detailed 
regulations have largely been de- 
signed to assure, is the distinction 
between combatants and non- 
combatants, and the protection of 
noncombatants against injuries 
not incidental to military opera- 
tions against combatants. 5 
In the preceding year, 1922, the 
General Board of the U.S. Navy had laid 
strong emphasis upon the same principle 
in concluding that the use of gases in 
warfare was illegal. The chairman of 
this General Board was Admiral W.L. 
Rodgers, previously a President of the 
Naval War College. Yet it is indicative of 
the growing skepticism in the possibility 
of maintaining this distinction between 
combatants and noncombatants during 
hostilities that sixteen years later, on 
the eve of the Second World War, 
Admiral Rodgers asserted that "if bellig- 
erents in the future think that success 
will be brought about by attack upon 
the hostile people in general, instead of 
on military forces only, the plea for 
immunity of noncombatants in the 
name of humanity will be second- 
ary. . . . Our cry for humanity merely 
betrays an instinctive revulsion from the 
accompaniments of war which amounts 
to little after hostilities have begun and 
passions have been aroused." 7 

Admiral Rodgers went on to 
prophesy the use of gas, and although 
future events proved him wrong in this 
respect, his basic contention proved 



very nearly accurate. At sea, the total 
character of warfare led to the relative 
ineffectiveness of the principle dis- 
tinguishing between combatants and 
noncombatants. As a result many of the 
traditional rules, which presupposed and 
were based upon this distinction, were 
rendered inoperative. In varying degree, 
belligerent merchant shipping was 
placed under control of the state. The 
arming of belligerent merchant vessels, 
sailing under convoy, and the incorpora- 
tion of merchant vessels into the intelli- 
gence system of the belligerent, were 
common practices. Under these circum- 
stances it became increasingly difficult 
to distinguish between combatants and 
noncombatants in warfare at sea. Given 
this difficulty, the rule forbidding the 
attack and destruction of enemy mer- 
chant vessels was made equally difficult 
to observe. 

In addition, the stringent control 
exercised by belligerents over imports, 
coupled with the achievements of 
modern science which have rendered the 
most unlikely articles of possible use in 
war, led to the abandonment of the 
traditional law of contraband. Bellig- 
erents came to treat as conditional 
contraband almost all goods formerly 
regarded as free; i.e., as immune from 
seizure by a belligerent. More im- 
portant, the distinction between abso- 
lute and conditional contraband, al- 
though formally adhered to by most of 
the belligerents, came to have little, if 
any, real significance. The possibility of 
distinguishing between absolute and 
conditional contraband is closely related 
to the possibility of distinguishing be- 
tween combatants and noncombatants. 
Goods constituting absolute contraband 
are always liable to capture by a bellig- 
erent if destined to territory belonging 
to or occupied by an enemy. The nature 
of absolute contraband makes it highly 
probable that a belligerent will appro- 
priate such goods as long as they are 
anywhere within his jurisdiction. In the 
case of conditional contraband, capture 



238 



has been considered justified only if the 
goods were Bhown to be destined for the 
use ot an eneim government or its 
armed forces, Hie ambiguous character 

of Conditional contraband, which is 

equally susceptible lor peaceful or war- 
like purposes, is resolved when it is 

established that such roods are intended 
tor militar\ use hy an enemy. Hut the 
controls exercised l»\ belligerents over 

import- during both World Wars did not 
allow, in practice, a clear distinction to 
DC made between goods destined to an 

enem) government, or its armed forces, 

and goods destined to the civilian popu- 
lation. The test of enemy distinction, 
formerly applied only to a restricted 
number of articles constituting absolute 
contraband, came to be applied to all 
goods susceptible of use in war. In 
effect, this development led to the 
belligerent claim to have the right to 
seize all goods ultimately destined for 
an enemy state. 

In the final analysis, though, it is 
aeriaJ warfare that most seriously 
threatens the distinction between com- 
batants and noncombatants, so far as 
tli is distinction relates to the actual 
conduct of hostilities. It would serve 
little purpose to review the many at- 
tempts to establish some practical and 
effective limitations upon aerial bom- 
bardment. As matters now stand, the 
generally admitted test for determining 
the legality of aerial bombardment is 
the criterion of the "legitimate military 
objective." The only difficulty with this 
test is that there is no general agreement 
today upon what may constitute a 
legitimate military objective. The only 
statement that may be safely made on 
this point is that, given the character of 
modern w arfare, the concept of a legiti- 
mate military objective has constantly 
expanded. 

Perhaps some semblance of the prin- 
ciple of distinguishing between com- 
batants and noncombatants may be 
preserved in relation to aerial bom- 
bardment by applying to this method of 



warfare certain restrictions which have 
been held to apply to hostilities wher 
ever conducted. These restrictions are 
that noncombatants must never be 
made the object ol \ direct attack, ii such 
attack is unrelated to a military objec- 
tive, and that attack for tin; sole pur- 
pose of terrorizing the civilian popula- 
tion is forbidden. These restrictions 
assume, of course, that the non- 
combatant population as such cannot 
constitute a legitimate military objec- 
tive. They further assume; that not even 
the practices of total war have rendered 
legitimate the terrorization and dis- 
organization of the civilian population. 
It must be admitted that these assump- 
tions are being seriously questioned 
today, although many who do question 
them are unwilling to see that if they 
are finally— and openly— abandoned we 
will have given up even the pretense that 
war can be subject to some regulation. 
On the other hand, realism requires 
that the practical significance of these 
restrictions, as they apply to aerial 
bombardment, not be overestimated. 
Whereas in land warfare it is frequently 
possible to determine when the civilian 
population is made the object of a 
direct attack, unrelated to military ob- 
jectives, in aerial warfare the difficulties 
involved in reaching a similar determina- 
tion are very great. The presence of 
noncombatants in the vicinity of mili- 
tary objectives does not render such 
objectives immune from bombardment 
for the reason that it is impossible to 
destroy these objectives without in- 
directly causing injury to the lives and 
destruction of the property of non- 
combatants. Even under the traditional 
law the immunity of noncombatants 
from the effects of hostilities was never 
considered to be absolute. In land war- 
fare, the measures permitted against a 
besieged locality, or the bombardment 
permitted in a zone of military opera- 
tions, afforded little protection to the 
civilian population situated within these 
areas. Nevertheless, these areas were 



239 



considered as legitimate military objec- 
tives, simply because of the presence of 
noncombatants. The same reasoning, 
when applied to the circumstances of 
aerial warfare, and given a sufficiently 
elastic definition of legitimate military 
objective, transforms an exceptional 
situation into a normal condition. The 
result is that in practice it has proven 
next to impossible to determine in aerial 
warfare when noncombatants have been 
made the objects of direct attack un- 
related to a military objective. 

In the absence, therefore, of any 
rules of customary or conventional law 
which specifically regulate the limits of 
aerial bombardment, and given the diffi- 
culties in applying to this method of 
warfare the principle which dis- 
tinguishes between combatants and non- 
combatants, we are forced to fall back 
upon the general principles of military 
necessity and humanity. The principle 
of military necessity may be defined as 
permitting a belligerent to apply only 
that kind and degree of force necessary 
for the purpose(s) of war, and which is 
not otherwise expressly prohibited by 
the customary or conventional law of 
war. The principle of humanity forbids 
the employment of any kind or degree 
of force not actually necessary for the 
purpose(s) of war; that is, force which 
needlessly or unnecessarily causes or 
aggravates human suffering or physical 
destruction. As applied to aerial bom- 
bardment, these principles forbid the 
wanton destruction of cities, towns, or 
villages, or any devastation not justified 
by military necessity. 

The opinion is frequently expressed 
that these principles of necessity and 
humanity contradict one another, that 
they serve opposing purposes, and that 
it is the task of a military commander in 
a concrete situation to endeavor to 
balance considerations of necessity 
against the demands of humanity. How- 
ever, this opinion would seem mis- 
placed. The principle of humanity, in 
forbidding the employment of force 



unnecessary or superfluous to the pur- 
poses of war, implies the principle of 
necessity. The principle of necessity, in 
permitting only that kind or degree of 
force necessary for the purposes of war, 
clearly implies the principle of hu- 
manity. 

In addition, the principle of military 
necessity should not be interpreted as 
being superior to, and thereby restrict- 
ing the operation of, other rules of 
warfare, either conventional or cus- 
tomary. On the contrary, it is the 
principle of military necessity that may 
be, and occasionally is, restricted by 
certain rules established by custom and 
convention. Not everything necessary to 
the purpose of war is allowed by the law 
of war. It has been the opinion of 
military tribunals, having occasion to 
pass upon this question, that where the 
prohibition contained by a positive rule 
of the law of war is absolute, military 
necessity cannot be used as a plea. Thus, 
military necessity has not been con- 
sidered as justifying the killing of 
prisoners of war. The latter prohibition 
is regarded as absolute, and tribunals 
have held that it cannot be deviated 
from even for reasons of self-preserva- 
tion. Military necessity may serve to 
justify deviation from a given prohibi- 
tion only where the rule in question 
itself provides, in the event of necessity, 
for such deviation. In these latter in- 
stances, tribunals have held that it is not 
essential to establish that the conditions 
required for invoking the plea of mili- 
tary necessity— i.e., self-preservation or 
the success of a military operation- 
were objectively present in a given 
situation. It has been considered suf- 
ficient to establish only that the indi- 
vidual putting forth the plea of military 
necessity honestly believed these condi- 
tions to be present at the time of 
action. 

The principles of military necessity 
and humanity are not to be considered 
only in their relation to existing rules of 
warfare. It is equally important to 



240 



insider then in their application to 

weapon- and methods not alrcad\ e\- 
pressh regulated l>\ law. Indeed, tin' 

primary purpose of these principles has 
generally been considered to be their 
usefulness in providing general criteria 

tor determining the legality or illegality 

oi novel weapons and methods lor 
conducting warfare. It is largely Irom 

this latter point ol view that we must 

judge the usefulness ol the principles of 

neeessiU and humanity. What is their 
application to aerial bombardment, to 
nuclear weapons, to bacteriological war- 
tare, et cetera? 

The obvious difficulty involved in 
the attempt to apply the principles of 
humanity and necessity to novel 
methods and weapons for conducting 
war is that these principles depend for 
their effective operation upon standards 
that are neither self-evident nor im- 
mutable. The legality of any new 
weapon or method must be judged in 
terms of its necessity; and the necessity 
must be determined by the purpose— or 
purposes— of war. Even assuming that 
the purposes of war remain constant, it 
has never been easy in practice to 
determine whether a specific weapon or 
method does cause unnecessary destruc- 
tion or human suffering. The provision 
of the Hague Regulations (No. IV, 
1907), that forbids belligerents to em- 
ploy "arms, projectiles, or material cal- 
culated to cause unnecessary suffering," 
has been largely without any real effect, 
and for the simple reason that it does 
not specify the weapons calculated to 
cause unnecessary suffering— hence, for- 
bidden. It is sometimes said that in 
order to determine the application of 
the principle of humanity to specific 
weapons we must look to the practice 
of states, and that it is from this 
practice that we may determine whether 
a particular weapon has the effect of 
causing unnecessary suffering or de- 
struction. Undoubtedly it is true that 
the practice of states may determine the 
illegality of a specific weapon, particu- 



lar!) il we Identify practice with cus- 
tom. Hut then the source of the pro- 
hibition is the customary practice of 

states, and it is merely superfluous to 
cite the principle of humanity. 

In short, rules which depend upon 
vague criteria can have only a limited 
utility; and this is especially true when 
such rules must be applied in a legal 
system in which the principal subjects 
of the law (states) themselves apply this 
law. The criterion of "necessity," hence 
the principle of humanity, has always 
suffered from the fact that its applica- 
tion to novel weapons and methods 
depended upon the possibility that 
states would agree upon its meaning in 
specific instances. Such agreement has 
always been relatively limited. This is 
especially so in a period marked by 
rapid and important developments in 
the methods and weapons of war. 

These difficulties are increased by 
the fact that the purpose of war has not 
remained constant. A war fought for the 
limited purpose of obtaining a more 
defensible frontier is something quite 
different from a war whose purpose is 
the total defeat and unconditional sur- 
render of the enemy. But if the pur- 
poses of war are varied, then the mea- 
sures necessary to achieve these pur- 
poses are equally varied. The truth is, it 
would seem, that as long as men con- 
sidered the purposes of war limited in 
character, the application of the princi- 
ples of humanity and necessity was at 
least a possibility, however restricted. In 
a war that is total, both in its conduct 
and in its aims, the application of these 
principles to novel weapons and 
methods has either a radically changed 
meaning or— perhaps— no meaning at all. 

In view of the preceding remarks, a 
brief comment may be made at this 
point concerning the legal position of 
nuclear weapons. Although there are no 
specific rules of conventional interna- 
tional law regulating the use of nuclear 
weapons, it has been suggested that the 
use of these weapons must nevertheless 



241 



be considered as subject to certain 
restrictions that already regulate war's 
conduct. These restrictions are: Article 
23a of the 1907 Hague Regulations 
forbidding the use of poison or poi- 
soned weapons; the provisions of the 
1925 Protocol of Geneva forbidding the 
use of poisonous or other gases and of 
"analogous liquids, materials or de- 
vices"; Article 23c of the 1907 Hague 
Regulations prohibiting the use of weap- 
ons calculated to cause unnecessary 
suffering; and, finally, the rule dis- 
tinguishing between combatants and 
noncombatants and forbidding direct 
attacks upon noncombatants, such 
attacks being unrelated to military ob- 
jectives. 

Undoubtedly the last two principles 
constitute the more general, and more 
significant, grounds for questioning the 
legality of using nuclear weapons in war; 
and there is a substantial number of 
authorities who do so question the 
legality of nuclear weapons on these 
grounds. I find it difficult to share their 
opinion. The objection that the use of 
nuclear weapons must cause unneces- 
sary suffering (and destruction) is 
gravely handicapped in view of the very 
vagueness of the criteria to be applied. 
As already pointed out, the question of 
whether or not a particular weapon is to 
be considered as causing unnecessary 
suffering, hence inhumane, is one that 
can be answered only by examining the 
practice of states. In the case of 
poisonous gases, for example, it would 
appear that the practice of states does 
point to the existence of a rule of 
universal validity forbidding the use of 
poisonous gases as an inhumane 
weapon. (Even here, however, the 
United States recently has expressed 
strong doubt as to the existence of any 
universal rule forbidding the use of 
poisonous gases). In the case of nuclear 
weapons the matter is otherwise. The 
present attitude of most of the major 
powers is clearly not that of considering 
the suffering caused by nuclear weapons 



as unnecessary, when judged by the 
military purposes these weapons are 
designed to serve. 

It is equally difficult to accept the 
objection that nuclear weapons are 
necessarily illegal for the reason that 
their use must lead to the complete 
obliteration of the rule distinguishing 
between combatants and non- 
combatants. In the first place, this 
objection is not necessarily relevant to a 
consideration of the legality per se of 
nuclear weapons. To the extent that 
nuclear weapons are used exclusively 
against military forces in the field or 
naval forces at sea, they escape this 
objection. It is only when such weapons 
are used against military objectives in 
the proximity of the noncombatant 
population that this argument warrants 
serious consideration. There should be 
little doubt that, as judged by the 
traditional meaning given to the prin- 
ciple distinguishing combatants from 
noncombatants, the use of nuclear 
weapons against cities containing mili- 
tary objectives must be deemed illegal. 
However, the same judgment would 
have to be made in considering the 
practices of aerial bombardment fol- 
lowed by belligerents during World War 
II, though very few writers have con- 
demned these recent practices as illegal 
and no records of war crimes trials are 
known in which allegations were made 
of illegal conduct in aerial warfare. 
Nuclear weapons have hastened a devel- 
opment that has been readily apparent 
for some time, and, if used against cities 
of an enemy, will provide the final blow 
to the once fundamental distinction 
made between combatants and non- 
combatants. Yet it is not easy to refute 
Professor Lauterpacht's opinion that 
"the total elimination or limitation, as a 
matter of law, of the use of the atomic 
weapon cannot be accomplished by way 
of a restatement of an existing rule of 
law. Such a restatement denying the 
legality of the use of the atomic weapon 
must, of necessity, be based on con- 



242 



troversial deductions from supposedly 
fundamental principles established in 
conditions vastl) different from those 

obtain infi in modern total and Bcien- 

(Hit warfare. 

In considering the present status of 
the law regulating the actual eonduet of 

Inutilities between belligerents, we have 

had occasion to touch upon certain 

problems that Involve neutral-belligerent 

relation- as well. However, neutral-hellig- 
erent relations have been considered 
larger) from the \ irw point of inter-bellig- 
erent relation-. This presupposes the 
predominance of belligerent interests 
over neutral interests. So far as naval 
warfare is concerned the method fol- 
lowed in this lecture is a reversal of the 
customary procedure, which considered 
inter-belligerent relations from the stand- 
point of neutral-belligerent relations. In 
fact, the rules regulating inter-belligerent 
relations during warfare at sea tradi- 
tionally have been considered as a kind of 
by-product of neutral-belligerent rela- 
tions. The customary procedure assumed 
that neutral interests were to be con- 
sidered, at the very least, as equal to 
belligerent interests. This assumption of 
students accurately reflected the assump- 
tion underlying the traditional law. H.A. 
Smith has observed that "the assumption 
underlying the traditional law (of naval 
warfare) is that the greater part of the 
world is at peace, that war is a temporary 
and local disturbance of the general 
order, and that the chief function of law 
is to keep war from spreading, and to 
minimize its impact upon the normal life 
of the world." He continues by stating 
\ll the states which are directly engaged 
(in nineteenth century wars) were most 
anxious to secure the sympathy of neu- 
trals, and the danger of provoking neutral 
intervention on the enemy side provided 
a very real sanction for the observance of 
the laws of war at sea. 1 ° 

After what has already been said in 
earlier comments it need hardly be 
pointed out that these traditional 
assumptions did not correspond to the 



Conditions under which the two World 

Wars were fought. The equality of neu- 
tral interests and belligerent interests 
depends, in the first instance, upon an 
equality of power; where neutrals do 
not possess this equality of power their 
interests, and hence their legal rights, 
will Buffer accordingly. This has always 
been true, even in the nineteenth cen- 
tury. It is especially true when war is 
conducted for unlimited aims and when 
the emotional fervor evoked by total 
war leads belligerents to equate neu- 
trality with immorality. 

During the nineteenth century a 
rough balance between the conflicting 
claims and interests of neutrals and 
belligerents was largely achieved. If any- 
thing, the traditional law as it stood at 
the outbreak of World War I inclined in 
favor of neutral interests. It soon be- 
came clear that if there is always a 
latent conflict between belligerent and 
neutral interests, even in a war fought 
for limited aims, the conflict between 
these interests in total warfare becomes 
almost irreconcilable. On the one hand, 
a primary aim of maritime warfare in 
both World Wars was the complete 
shutting off of enemy trade, the de- 
struction or capture of all imports to 
and exports from enemy territory, with- 
out regard to whether this trade was 
carried in enemy or neutral bottoms. On 
the other hand, the effect of the tradi- 
tional law was to insure that the mari- 
time measures a belligerent could bring 
to bear against an enemy's economy 
would play only a limited role in the 
final decision of the war. 

Given these circumstances, the out- 
come was hardly unexpected. On the 
German side, the measures resorted to 
are well known. Lacking adequate sur- 
face naval power even to attempt to 
exercise the controls over neutral 
shipping allowed to belligerents by the 
traditional law, Germany resorted to 
indiscriminate minelaying and un- 
restricted submarine and aerial warfare. 
Immense tracts of the high seas were 



243 



declared "operational" or "barred" 
zones, and in these areas neutral ship- 
ping was forbidden to enter upon pain 
of destruction. 

The measures taken by Great Britain 
were varied and complex, and far less 
destructive in terms of neutral lives and 
shipping. The contraband list was ex- 
panded to include almost all articles. 
New meanings of enemy destination 
were adopted, which had the effect of 
wiping out the traditional distinction 
between absolute and conditional con- 
traband. The traditional rule of prize 
law that obligated the captor to prove 
the enemy ownership or destination of 
captured cargoes was abandoned. In- 
stead, neutrals had to establish the 
genuinely neutral ownership or destina- 
tion of vessels and cargoes in order to 
avoid their condemnation. Since the 
belligerent right of interception at sea 
proved insufficient to shut off the 
enemy's trade, Great Britain resorted to 
novel methods of contraband control. 
The two major techniques of contra- 
band control were navicerting and 
rationing. The important feature of the 
navicert system is that it permitted 
cargo examinations to be conducted in 
neutral ports, instead of at sea or in the 
ports of the belligerent. In fact, one of 
the principal purposes of the new tech- 
niques of contraband control devised by 
Great Britain was to control contraband 
at its source. In the end, however, the 
measures resorted to against the 
enemy's trade were based upon the right 
of reprisal. The most far-reaching of 
these reprisal orders, the British "block- 
ade" announcement of 30 July 1940, 
decreed that any vessel sailing for a 
European port was required to obtain 
navicerts for all items of cargo and, in 
addition, a ship navicert at the last 
loading. Any consignment not navi- 
certed and any shipment without a ship 
navicert was liable to seizure. The same 
rules applied to outgoing trade. All 
vessels sailing from European ports had 
to have certificates of non-enemy origin 



for all items of their cargoes. Any vessel 
whose cargo was not fully certificated 
was liable to seizure. Although these 
measures of reprisal have been termed 
"blockades," they neither resembled in 
their operation, nor did they conform in 
certain respects to the rules governing, 
the traditional blockade. 

It has been suggested that as far as 
neutral-belligerent relations are con- 
cerned a distinction should be made 
between great wars and small wars. In 
great wars neutral rights, particularly at 
sea, will probably suffer the same fate 
that they did in the two World Wars. In 
small wars we may expect some degree 
of adherence to the traditional law. 

It is rather difficult to judge the 
merit of this distinction between great 
and small wars. Many will contend that 
the possibility of limited wars is so 
small, that any speculation as to how 
these wars may be fought represents 
wasted effort. There are further con- 
siderations which serve to suggest the 
limited operation of the traditional law 
of neutrality, even if it is assumed that 
future conflicts may be limited in their 
scope and in their number of partici- 
pants (and the experience of Korea does 
suggest this possibility). The traditional 
rules of neutrality were based not only 
upon the nonparticipation of many 
states in any given conflict but also 
upon the principle of strict impartiality 
of the nonparticipating states toward 
the belligerents. In addition, the tradi- 
tional law assumes throughout that a 
clear distinction can and will be made 
between the neutral state and the pri- 
vate neutral citizen— the neutral trader. 
Hence, the performance of acts of par- 
tiality on the part of the neutral citizen 
—carrying contraband, breaking block- 
ade, performing "unneutral services"— 
does not affect the impartiality of the 
neutral state. 

These assumptions of the traditional 
law of neutrality must be seriously 
questioned today. The control bellig- 
erents now exercise over their merchant 



211 



shipping differs onl) in degree from the 
control neutrals exercise over their mer- 
chant shipping. In practice, tin- distinc- 
tion between neutral state and neutral 
tra<l<r has become Increasingly difficult 
to make. More important, perhaps, i> 
the obvious incompatibility between the 
principle oi Btricl impartiality and the 
obligations states incur within a system 

ot collective Becurity. The Charter of 

tin- I nited Nation- obliges the member 

States to a»ist the organization in the 
event of a threat to or breach of the 
peace. Such assistance may not neces- 
sarily involve actual participation in 
hostilities but it docs obligate member 
states to abandon the position of strict 
impartiality toward the belligerents. The 
conclusion of regional and collective 
sell-defense arrangements operates to 
place similar restrictions upon the con- 
tracting parties, and to limit further the 
future application of the traditional law 
of neutrality. Finally, mention must be 
made of the recent tendency of states to 
distinguish between a neutral status 
which implies strict impartiality and a 
status of qualified neutrality. The essen- 
tial feature of a status of qualified 
neutrality is that it does not preclude a 
certain measure of discrimination in 
favor of one belligerent or group of 
belligerents, short of actual participa- 
tion in hostilities. But what the rules 
which govern this status of qualified or 
discriminating neutrality are, if there are 
any rules, is impossible to determine at 
present Still, it would be premature to 
conclude that neutrality, in its tradi- 
tional form, is a thing of the past. We 
must consider the possibility that in a 
future conflict there will be states that 
will seek to ensure their nonparticipa- 
tion in hostilities. Despite the difficul- 
ties involved in applying today the 
traditional rules of neutrality, charac- 
terized by the rule of strict impartiality, 
these rules still provide the only estab- 
lished legal regime for states to follow 
who desire to abstain from becoming 
involved in war. For these reasons, we 



must continue to study the traditional 
rules ol neutrality in warfare at sea. 

At the beginning of this lecture, 

reference was made to the widespread 

skepticism with which the law of war is 
regarded today. Enough has been said to 
indicate that there is a sound basis for 
thi> disbelief that future wars can be 
subject to effective restraints in the 
conduct of hostilities. Unless the trend 
of the last forty years is reversed, we 
must consider the prospect of hostilities 
conducted with even less restraint than 
was the case in World War II. However, 
despite the practices of belligerents in 
recent wars, and the very perilous situa- 
tion to which these practices have led, 
there is strong opposition to any sugges- 
tion of a revision of the law of war- 
particularly a revision of the rules gov- 
erning the actual conduct of hostilities. 

Perhaps the most influential of these 
arguments centers in the contention 
that the phenomenon of total war is 
merely a consequence of scientific and 
technological developments, against 
which it is useless to devise rules in- 
tended to control the purposes these 
developments should serve and the use 
to which they may be put. However, 
total war is not a technological or 
scientific necessity, but primarily a 
social and political phenomenon. It is 
not even altogether correct to say that it 
is technological developments which 
now make total war a possibility, since 
this possibility has always existed. Total 
war is no innovation of the twentieth 
century. It is rather a revival of a very 
ancient method of waging war. Hence, 
the recurrence of total war in our time 
is not due primarily to these develop- 
ments, though advances in science and 
technology no doubt contribute a great 
deal to the ease by which total war may 
be waged. Fundamentally, it is the 
willingness of men to use these innova- 
tions for unlimited destruction that has 
once again given rise to total war. 

There is considerably more truth in 
the related argument that restraints 



245 



upon the conduct of war can only be 
effective to the degree that they reflect 
the common interests of the bellig- 
erents. In part, of course, this latter 
argument is a rather laborious attempt 
to state the obvious. Nevertheless, it 
does have the merit of recognizing that 
the conduct of war depends upon inter- 
ests, upon human desires, and is not 
merely a reflection of some necessity 
imposed upon men by the instruments 
of war. Its objectionable feature consists 
in considering these common interests 
of belligerents somehow foreordained 
and immutable. More often than not, it 
serves to justify any given situation. The 
truth would seem, however, that the 
interests, even the common interests of 
belligerents are far from fixed, that they 
are in fact subject to considerable varia- 
tion. 

Opposition to any further considera- 
tion of the law of war is frequently 
offered for the reason that it is illogical 
to endeavor to eliminate war and, at the 
same time, to attempt to regulate the 
conduct of war if it does occur. Yet 
there is nothing illogical or contradic- 
tory about this. It is not true that in 
view of the Charter of the United 
Nations "war" as such has been 
abolished, and therefore the law of war 
has suffered the same fate. The Charter 
of the United Nations, even assuming its 
effective operation, certainly does not 
rule out the possibility of international 
armed conflict. Whether or not we call 
this conflict war is of little importance 
in this connection, since it does not 
substantially affect the question of the 
applicability of rules whose purpose is 
to regulate the conduct of hostilities. 
Nor has the general legal transformation 
in the status of war affected the ap- 
plicability of the law of war between 
belligerents, despite recent suggestions 
to the contrary. The growing conviction 
that the resort to armed force must be 
considered as unlawful, except when 
undertaken as a measure of defense, has 
led many to conclude that a law equally 



applicable to the aggressor as well as to 
the victim is somehow incongruous and 
even immoral. This view assumes that 
the law of war is a product of the period 
in which war— i.e., the resort to war- 
was looked upon with indifference, and 
that the law of war was also a product 
of the same indifference toward war. It 
must be emphasized that the rules of 
warfare did not have their origin and 
justification simply in a cynically in- 
different attitude toward the legal and 
moral character of war itself. The final 
justification for a law of war has always 
been, and must remain, the conviction 
that whatever the interpretation given 
to war itself there should be rules for 
the regulation, and mitigation, of war's 
conduct. 

In this task of improving the 
methods by which wars are to be 
conducted, the military commander 
must play a leading role. Some 60 years 
ago a great scholar observed, in con- 
sidering the possible improvement of 
the laws of war, that "the best hope for 
the further mitigation of war lies in a 
high standard of character being main- 
tained among soldiers. In peace con- 
siderations of law and justice may be 
acted on by nations, and the action 
taken on such grounds will in its turn 
help to mould the character. In war the 
stress is such that no considerations can 
be relied on for determining action but 
those which are already incorporated in 
the character. The determination of 
action in war lies practically with two 
classes, commanders by land and sea 
and statesmen: the people, once excited 
enough for war to have broken out, will 
approve of any measures which their 
commanders and statesmen recommend 
for carrying it on, and of these two 
classes the commanders are much more 
the important for our present purpose, 
because their opinion of what necessity 
requires will influence the states- 

"1 2 

men. . . . 

The foregoing observation is as true 
today as when first written. The 



246 

military commander cannot avoid 1 1 1 < - Bound concept of subordinating the 

fact that during .1 period of war he must methods <>f warfare to t h<> requirements 

bear 1 special responsibility t « >r th«* of a more Btable and durable peace, one 

decisions made concerning the methods oi the lirsi steps must be a clear 

l>\ which war will be waged. 1 1 we arc i<> realization l>\ military commanders that 

hope lor a reversal of the trends of two they must pla\ a decisive role in this 
World Ware, il we are to return to the process. 

NOTES 

1. The term "traditional rules* 1 refers, in the main, to the customary and conventional law 
.i- it stood ll the outbreak of World War I. The customary law of war, particularly the customary 
law of naval warfare, is largely the result of nineteenth and early twentieth century practice. The 
conventional law refers, on the whole, to the rules established by the Hague Conventions of 1899 
and L907. 

2. U.S. Naval War College, International Law Documents, v946-47, (1948), p. 229. 

3. 11. A. Smith, Toward Custom of the. Sea (2d. ed., 1950), p. 164. 

1. For example, Julius Stone writes: "The immediate task is to regulate the future of naval 
warfare in which submarines and aircraft will join in the attack on enemy commerce; for it is 
regrettabl) clear that no rule purporting to exclude them from this role, however well-grounded 
in humanity, will be brooked." Legal Controls of International Conflict (1954), p. 607. 

5. The statement was made by John Bassett Moore. See: John Bassett Moore, International 
Law and Some Current Illusions (1924), p. 200. 

6. The report of the General Board was submitted to the Washington Conference on the 
Limitations on Armaments, by the American delegation. See: U.S. Naval War College, 
International Law Situation, 1 935 (1936), pp. 99-100. 

7. W.L. Rodgers, "Future International Laws of War," American Journal of International 
Uw,Vo\. 33(1939), p. 442. 

8. See: The Hostages Trial (Trial of Wilhelm List and Others). Law Reports of Trial of War 
( riminals, VoL 8 (1948), pp. 66-69; The German High Command Trial (Trial of Wilhelm von 

Leeb and Thirteen Others), Law Reports Vol. 12 (1949), pp. 85, 93-94, 123-127; Trial of 

Gunther Thiele and Georg Steinert, Law Reports. . . . Vol. 3 (1948), pp. 56-59; and Trial of 
ll'lmuth von Ruchtschell, Law Reports Vol. 9 (1949), p. 89. 

9. H. Lauterpacht, The Revision of the Law of War, p. 371. 

1 0. H.A. Smith, Law and Custom of the Sea (2d ed., 1950), p. 75. 

11. "... assuming that neutral power is sufficient to enforce observance of the rules, the 
probability is that economic pressure at sea will only play a relatively minor part in the decision 
of the war." Smith, Law and Custom of the Sea, p. 139. By "the rules," Smith refers to the 
traditional rules. 

12. John Westlake, Collected Papers (1914), pp. 277-278. 



247 



RULES GOVERNING THE CONDUCT OF HOSTILITIES- 



THE LAWS OF WAR AND THEIR ENFORCEMENT 



Gerald I.A.D. Draper 



Historical Introduction. War being a 
very ancient activity of man, it is not 
surprising that over the course of cen- 
turies a considerable amount of law has 
evolved around the subject In the 
Christian era, from the early 5th to the 
17th centuries, the main emphasis was 
laid upon the valid causes of resorting to 
war. The first successful achievement of 
the law was the outlawry of private war, 
the scourge of the Middle Ages. Un- 
fortunately, the preoccupation of early 
writers with the "just causes" of re- 
sorting to war had an obstructive effect 
upon the establishment of binding rules 
as to how wars should be fought. How- 
ever, customary rules were evolved by 
the gradual acceptances of certain re- 
straints in the conduct of wars. Chris- 
tian morality and chivalry played their 
part in this evolution. However, it was 
not until the "just war" idea had spent 
its usefulness, in the early 18th century, 
that the way was open to the develop- 
ment of the idea of a law of war which 
was binding on both contestants irre- 
spective of the merits of the cause that 
had driven them to resort to hostilities. 

In the 19th century we see the doc- 
trine of State sovereignty attain its full- 
est dimensions. The right to resort to 
war as an instrument of national policy 
is seen as a central part of that sover- 
eignty. War came to be seen as an instru- 
ment for asserting rights, revision of 
treaties and the furtherance of the 



national policy, whether it was colonial 
expansion, the maintenance of the bal- 
ance of power, or the pursuit of aggran- 
dizement. This was a situation admitted 
and allowed by international law and 
operative in 1914 at the outbreak of 
World War I. 

It is in this era, which we may call 
the high tide of national sovereignty, 
that we see the establishment of much 
of the codified law of war. That part of 
international law which was first sub- 
jected to the codifications process was 
the law of war. Starting with the Dec- 
laration of Paris in 1856, dealing with 
the maritime law of war, a movement 
for the codification of the international 
law of war began which culminated in 
that substantial body of written law 
produced by the 1st and 2nd Hague 
Peace Conferences of 1899 and 1907, 
respectively. In 1907 no less than 13 
Conventions were concluded, of which 
12 dealt with the law of war and neu- 
trality; eight of these dealt with various 
aspects of the law of war and neutrality 
at sea. This was a very considerable 
achievement. The impetus for this sub- 
stantial law-making exercise was 
generated by a variety of factors. Promi- 
nent among these was the awakening of 
the humanitarian conscience of man- 
kind, particularly after the harsh ex- 
periences of such battles as that of 
Solferino in 1859 and Gettysburg in 
1863, the increased killing power of 



248 



artillery, tin* anachronism of Infantr) 

tactics, the inadequacy of medical and 
niirsiiiii service.^ fad the field, the use of 
COnSCripl armies, ami the need for more 
precise w ntten rules of the law of war in 
place of the older but valuer eu>tomary 
roles upon the subject. This last factor 
brought its influence to bear mainly in 
tin- ^ork of Dr. Francis Lieber which 
fructified in the 'instructions for the 
Government of Armies of the United 
States in the Field (General Orders, No. 
1(H)) issued by President Lincoln in 
1863. The essentially moral and hu- 
manitarian nature of the principles and 
rules formulated in these Instructions 
can be seen in Article 15 thereof: "Men 
who take up arms against one another in 
public do not cease on this account to 
be moral beings, responsible to one 
another and to God." The uncertainties 
of the outcome of war and the immi- 
nence of death for all those who take 
part in it underwrite the perennial prin- 
ciple underlying the law of war which is 
expressed in this Article. 

In the codification of the law of 
maritime warfare achieved in the Hague 
Conventions of 1907 there can be seen 
the need to establish some balance be- 
tween the rights of neutral shipping and 
trade and belligerent rights on the high 
seas, the need to humanize the treat- 
ment of the wounded, sick and ship- 
wrecked members of armed forces at sea 
by extending and adapting the Geneva 
Convention of 1864 relating to the sick 
and wounded on the battlefields, and 
the need, which was not fulfilled, to 
establish an international Prize jurisdic- 
tion and an international law of Prize to 
be applied in any such jurisdiction. 

Throughout the law of war there can 
be seen the incessant endeavor to adjust 
and balance the military needs of bel- 
ligerents with the dictates of humanity. 
From the earliest Christian times war has 
been regarded as an evil, the scope and 
effects of which are to be limited when- 
ever possible. What the doctrine of the 
"just war" failed to do, the principles of 



humanity, from the late 18th century, 
have tried more successfully to do. The 
first principle of the law of war is that a 
belligerent may use the amount of force 
necessary to achieve the purpose of war, 
namely, the overpowering of the enemy, 
by the swiftest and most economical 
methods in the use of manpower and 
resources. That part of the law of war to 
which we pay most attention is the 
series of prohibitions, part humani- 
tarian, part reasonable, part common 
interest, which are imposed upon this 
first principle. The great moral premise 
has been, and is, that war is an evil per- 
mitted in narrowly limited circum- 
stances, a premise now reflected in 
Article 2(4) of the United Nations 
Charter. The basic premise in the law 
about how wars are to be conducted is 
that all necessary force may be used to 
secure victory over the enemy. This 
premise lies underneath the substantial 
corpus of restrictions which we are 
accustomed to call the law of war. Such 
restrictions, however, necessarily pre- 
suppose the basic enabling principle of 
the legitimacy of all force necessary to 
overcome the enemy. The validity of 
this proposition is not weakened by the 
general principle underlying all the re- 
strictions of the law of combat, found 
in Article 22 of the Hague Regulations 
of 1907: 'The right of belligerents to 
adopt means of injuring the enemy is 
not unlimited." The juxtaposition of 
these restrictions to the basic premise of 
the law of war is of some importance. A 
method of conducting war is not unlaw- 
ful merely because there is no express 
legal authorization of that method. It is 
lawful unless it stands condemned by 
the specific prohibitions of the law of 
war or by the general principles which 
inform and color those prohibitions. 

The Law of Sea Warfare. The law of 
war is traditionally divided into the law 
of land, sea and aerial warfare; although 
modern developments in weaponry may 
blur the boundaries and even add a 



249 



fourth dimension, the law of war in 
outer space. Many of the principles of 
the law of war are common to all its 
parts, but from the nature of sea war- 
fare the law that governs it still presents 
its own special delineations. The aims of 
sea warfare are not those of land war- 
fare. The aims of the former are the 
defeat of the enemy navy, the annihila- 
tion of the enemy merchant marine, the 
destruction of coastal, and today, hin- 
terland military installations and estab- 
lishments, the economic strangulation 
of the enemy by the denial of access to 
its coast and the sea trade that supports 
its war effort, the support of landings 
on the enemy territory, and the general 
support of land operations. The defen- 
sive nature of sea warfare involves, inter 
alia, the protection of the home coast 
and merchant fleet. 

The law of sea warfare also displays 
some difference in the physical objects 
against which such warfare may legally 
be directed. The main object is enemy 
ships, public or private. In land warfare 
the main object tends to be the oppos- 
ing armies whilst private property en- 
joys a measure of protection. In the law 
of sea warfare individuals in the enemy 
ships are legitimate objects against 
which sea warfare may be directed, but 
they do not hold the primary place. In 
sea warfare, by concentrating on hostili- 
ties against enemy vessels three legiti- 
mate advantages are obtained at one 
swoop. First, the ship is either captured 
or destroyed; second, the personnel are 
either killed, captured, or rendered in- 
capable of assisting the enemy war 
effort; and third, the enemy property or 
contraband found thereon may be 
appropriated. In some respects this has 
made naval warfare primarily a contest 
between ships rather than individuals. 
Whether this has made such warfare 
more humane is open to argument. The 
most powerful modern weapon is now 
launched from a ship and is not directed 
at naval targets, but against the hinter- 
land of the enemy State. 



The modern divisions of the law of 
war have tended to depart from those 
just enumerated, based upon the ele- 
ment in which they are waged. Today 
we tend to see the pattern of the law of 
war as a fourfold division, namely, the 
law relating to the conduct of hostili- 
ties, allowing for the traditional distinc- 
tions between land, sea and aerial war- 
fare; the law relating to occupation of 
enemy territory, with which the law of 
maritime war is but little concerned; the 
law relating to the treatment of war vic- 
tims, now contained substantially in the 
four Geneva Conventions of 1949; and 
the law relating to nonhostile relations 
between belligerents. One of the Geneva 
Conventions of 1949, the second, is de- 
voted exclusively to the subject of vic- 
tims of naval warfare, being the Conven- 
tion for the amelioration of the condi- 
tion of wounded, sick and shipwrecked 
members of armed forces at sea. The 
third of these Conventions relating to 
the treatment of prisoners of war is very 
much the concern of naval warfare inso- 
far as naval personnel are not exempt 
from the war hazards of capture. It is 
not normally the concern of naval per- 
sonnel so far as the detention of pris- 
oners of war is concerned. There is a 
marginal concern insofar as there may 
be special Naval Interrogation Centres in 
which naval interrogators operate. This 
law relating to the treatment of war vic- 
tims, as expressed in the four Geneva 
Conventions of 1949, is a solid part of 
the modern law of war, comprising well 
over half of its total content. They com- 
prise in all, 417 articles. 

The law relating to the enforcement 
of the law of war imprints itself on all 
sectors of the law of war, whether one 
adopts the traditional sectors or the 
more modern divisions. As we shall see, 
a large part of the modern law about the 
enforcement of the law of war is to be 
found in the Geneva Conventions al- 
though substantial areas, including that 
concerning the enforcement of the law 
of hostilities, are still to be found in 



250 



CUStOmai) la\> and in the iimiicriub 

judicial precedents furnished l>\ the in- 
ternational and national war crimes 
tribunals operating at tin- end of World 

War 11. The Law o! Sea Warfare shares 

the law of enforcement with the other 

91 <tors of the Law of W ar. 

Hit* l^aw Relating to Hostilities at 

Sea. The Law of Sea Warfare lacks any 

Convention dealing generally with naval 
hostilities such as the Hague Conven- 
tion No. IV of 1907 concerning the 
Laws and Customs of War on Land. 
However, certain of the general princi- 
ples expressed in that Convention apply 
to naval hostilities. In particular, the 
general principle formulated in Article 
22 therein, that the means of injuring 
the enemy are not unlimited, applies. 
The prohibitions of poison, treachery, 
of the denial of quarter and weapons 
which cause unnecessary suffering, 
prohibitions which already existed 
under customary law, will bind partici- 
pants in naval hostilities. However, in 
matters such as naval bombardment, a 
matter of some importance today, and 
the use of submarine contact mines, 
Conventions were concluded in 1907 
dealing exclusively with these topics. 
These Conventions are in force today. 
Hague Convention No. IX deals with 
bombardment by naval forces in time of 
war and Hague Convention No. VIII 
deals with the laying of submarine Con- 
tact Mines. 

The Law of War contains a basic pro- 
hibition that warfare is not to be con- 
ducted against civilians as such. This is a 
customary law prohibition and underlies 
international conventions dealing with 
war, including the four Geneva Conven- 
tions of 1949. The corollary of this 
principle is that the Law of War deter- 
mines who has the privilege of bellig- 
erent action and who has not. It is a 
serious violation on the part of those to 
whom the law of war does not accord 
the privilege of being combatants, to 
participate in hostile action against the 



enemy. It is thus that the idea of 
"marauding" passed into the customary 
law of war. Marauders are an early ex- 
ample of war criminals. In former times 
the) received short shrift and today 
the) are exposed to tin' risk of trial for 
violating the law ol war and upon con- 
viction, to a heavy penalty. Very early 
the law of war condemned private wars. 
It has now for some time condemned 
those private persons who join in a pub- 
lic war unless the law has given them tin; 
right or privilege to participate. That 
right is jealously contained, and is virtu- 
ally limited to members of organized 
resistance movements and of a levee en 
masse. If the innocent civilian is to be 
excluded from the objects of warfare 
and is not to be deliberately attacked, 
the reverse of the coin is that the; 
civilian who joins in the fight without 
legal justification merits condign punish- 
ment. In the law of sea warfare it is 
men-of-war and their naval crews which 
have the privilege of conducting naval 
hostilities. Other public ships and pri- 
vate ships, i.e., merchantment, fishing 
trawlers and private vessels, are treated 
as marauders if they initiate an armed 
attack on enemy warships. One practical 
result of this principle is that the law of 
war determines what is a warship and 
regulates the conversion of merchant 
ships into warships in time of war. Thus, 
among the Hague Conventions of 1907 
we find Convention No. VII relating to 
the Conversion of Merchant Ships into 
Warships. The conditions are stringent 
and the Convention is still in force. It 
also gives us the legal definition of a 
warship. To qualify as a warship the 
Convention requires that a ship must be 
placed under the direct authority and 
immediate control of the State whose 
flag it flies and must bear the external 
marks distinguishing the warships of the 
State under whose authority it acts; the 
commander of the ship must be in the 
service of that State and duly commis- 
sioned and listed in its Navy List; the 
crew must be subject to the regular 



251 



naval discipline of that State, and the 
ship must observe the law of war, in- 
cluding the provisions in this Conven- 
tion. It is generally accepted that this 
Convention codified the existing cus- 
tomary law as to the qualification of a 
warship. The implications of this Con- 
vention for any such project as the 
M.L.F. or the A.N.F. are serious. 

The customary rules relating to the 
conduct of naval hostilities still main- 
tain that all enemy men-of-war or other 
public vessels encountered by an enemy 
man-of-war on the high seas or in the 
territorial sea of the opposing bellig- 
erent may be attacked and, subject to 
there being no signal of surrender, may 
be destroyed or sunk. Conversely, all 
such vessels may, of course, counter- 
attack. This attack may be by shell or 
missile firing, torpedoes, ramming, or by 
bombing from aircraft. Boarding and 
fighting the crew are lawful, but rare. 

It is the legal position of merchant- 
men and the employment of submarines 
that have presented the major area of 
legal controversy during the two last 
wars. In law enemy merchantmen are 
private enemy ships. As such they are 
not liable to attack unless they refuse to 
submit to visit by enemy men-of-war 
after being signalled to do so. The mer- 
chant ship is entitled to try and elude 
the visit and may use force to defend 
herself against attack. The initiation of 
force by a merchant ship is in law a 
form of marauding exposing the cap- 
tured crew to the risk of trial and 
punishment. The modern practice of sea 
warfare, however, is quite otherwise. 
The employment of submarines, which 
are men-of-war, and their practice of 
sinking without warning enemy and 
neutral merchantmen, led to the arming 
of merchantmen on an extensive scale in 
both world wars. In the view of some, 
this practice has resulted in the virtual 
integration of the merchant marine into 
the belligerents' navies to the extent 
that they can lawfully be attacked on 
sight. This is open to doubt. Certainly it 



would be difficult to justify an attack 
on an enemy warship initiated by an 
armed merchant ship. Neither is it legiti- 
mate for coastal or other shore batteries 
to open up on a merchant ship merely 
because it is known to be armed. The 
better opinion may be that the arming 
of merchantmen to meet the threat of 
attack without warning, particularly by 
enemy submarines, does not of itself 
deprive them of their status as 
merchantmen or confer upon them that 
of a warship. If it is known that enemy 
submarines are in the habit of sinking 
merchant ships without warning, it is 
not legally necessary for the merchant 
ship to wait to be attacked. They may 
lawfully resort to hostile action if 
alerted of the presence of hostile sub- 
marines, e.g., by dropping depth 
charges, firing upon, and even ramming, 
if the submarine is forced to the surface. 
Such action might properly be taken by 
the merchantman even after being sig- 
nalled to stop and submit to visit and 
search, particularly if the practice of the 
enemy is to fail to pick up the merchant 
ships' crew and to turn them adrift in 
lifeboats on the high seas. 

From the nature of this situation it is 
apparent how far sea warfare practices 
have gone beyond those allowed by the 
law of war. A merchant ship was not the 
lawful object of attack but might be 
stopped, visited and searched, placed 
under the captor's authority and taken 
before its Prize Court, there to be con- 
demned by adjudication. Once adjudi- 
cated by condemnation in Prize then, 
and then only, did the enemy vessel and 
enemy property vest in the enemy bel- 
ligerent State. With enemy public ships, 
the legal position was quite otherwise. 
By the mere fact of capture of such 
ships they were then and there finally 
appropriated to the capturing bellig- 
erent. They could be taken to a port or 
destroyed on the high seas. Enemy 
goods on such public ships are also 
legally appropriated by the fact of cap- 
ture and may be destroyed if desired. 



252 



I In- neat and tid\ part of the law of 
Bel Warfare ha> been disrupted I»n the 

advent and use of submarine warfare. \ 
submarine i> in law a warship and ma\ 
therefore exercise tin* rij:ht of visit and 
search <>\<t enem) merchant ships and 
capture them. Clearl) a submarine can- 
not spare a prize crem to take a pri/< 

into one ot its ports lor adjudication in 
Prize. Nor i> there space in the subma- 
rine lor the crew of the prize. In these 
circumstances some have considered 
that submarines may never lawfully 
destro) a captured enemy merchant- 
man. Before the advent of the subma- 
rine limited exceptions were allowed to 
the general rule that a prize must be 
conducted into a port for adjudication. 
One was when the condition of the 
prize precluded navigation into such a 
port The other was when the capturing 
vessel could not spare a prize crew to 
take the prize into port. Arguments 
arose as to the exclusiveness of these ex- 
ceptions. The practice in the American 
Civil War was for the Confederate Navy 
to destroy all enemy prizes, there being 
no port open to which to take them. Be 
that as it may, it was generally accepted 
as a legal requirement that the crew of 
the prize had to be removed in safety 
and brought in later, with the papers 
and the cargo, to the Prize Court for 
adjudication upon the validity of the 
capture and the destruction of the ship. 
It is against this background of law that 
one must, I think, see the practices in 
submarine warfare that developed in the 
last two world wars. The Germans re- 
sorted in World War I to the practice of 
destroy big after a limited warning of 
minutes, all enemv merchantmen found 
in a proclaimed "war area" around 
Great Britain. Ten minutes warning was 
normally given to leave the ship and 
take to the boats. Such a warning would 
be considered generous in the light of 
the practices in World War II. After 
1915 Germany extended this practice to 
neutral merchant ships. The Lusitania, 
sunk in 1915 off the Irish coast, was but 



one of man) such incidents. In that loSfi 

I KM) civilian personnel were lost, In- 
cluding a large number of women and 
children. 

It was in the light of these practices 
that an attempt was made between the 

two wars to establish a Convention to 

protect neutrals and noncornbatants at 
sea in time of war. The attempt was not 
immediately successful as the Treaty of 
Washington of 1922 was never ratified 
by any of the signatory Powers. How- 
ever, the Treaty proceeded on the 
assumption that submarines could not 
operate in practice as commerce de- 
stroyers, without violating the existing 
customary international law of sea war- 
fare. Accordingly, the abortive Treaty 
sought to forbid the use of submarines 
for such a purpose. The matter was then 
included in the London Naval Treaty of 
1930 to which the U.S., the U.K., 
France, Italy, and Japan were all Parties. 
This Treaty expired in 1936 but the 
Part (IV) which dealt with the relation 
between submarines and enemy mer- 
chant shipping was considered to be 
declaratory of existing customary law. 
Further, in 1936 a Protocol to the Lon- 
don Naval Treaty of 1930 was signed 
which included Part IV of the latter. 
This Protocol bound the original States 
Parties of the 1930 Treaty and came to 
bind both Germany and the USSR by 
accession in 1936 and 1937 respec- 
tively. The Protocol was in force during 
World War II and is still in force today. 
Its provisions are important, for their in- 
fringement resulted in the conviction of 
Grand Admiral Doenitz by the Interna- 
tional Military Tribunal (I.M.T.) at 
Nuremberg, in his capacity as Com- 
mander in Chief German U-boat Com- 
mand during World War II. The Protocol 
of 1936 affirms the guiding principle 
that submarines in their actions against 
enemy merchant ships must observe the 
rules of international law binding upon 
surface men-of-war. In other words, 
they are granted no special rights be- 
cause they operate under water, have 



253 



little space for captured crew and can- 
not navigate prizes to ports. More 
specifically the Protocol provides that 
"except in case of persistent refusal to 
stop on being summoned or of active 
resistance to visit or search, a warship, 
whether surface or submarine, may not 
sink or render incapable of navigation a 
merchant vessel without first having 
placed passengers, crew and ship's 
papers in a place of safety." Further, 
the ship's boats can be regarded as such 
a place of safety only if the safety of 
the passengers and crew is assured, 
having regard to the conditions of the 
weather and the sea, the proximity of 
the land, or the presence of another 
vessel able to take them on board. Now 
this is stringent. Subject to the opera- 
tion of reprisals, which from their 
nature admit the illegality of violative 
conduct, this Protocol is binding as law 
today. 

In World War II the German U-boats 
systematically disregarded this Protocol. 
The Judgment of the I.M.T. upon 
Doenitz in this context will repay study. 
The Judgment has been affirmed by the 
unanimous resolution of the General 
Assembly of the UN in December 1946. 
The Tribunal held: (1) Because the 
British Admiralty armed its merchant- 
men, convoyed them with armed escort 
and had ordered the giving of position 
reports of the presence of German 
U-boats, thus integrating them into the 
alerting system of naval intelligence, and 
for the ramming of them if possible, 
Doenitz was not guilty of attacking 
British armed merchant ships. (2) The 
German U-boat sinkings of neutral 
merchant vessels without warning in the 
so-called "operational zones" was a 
violation of the London Protocol of 
1936 for which Doenitz was guilty. The 
Protocol of 1936 had been made in the 
knowledge that such "operational 
zones" had been used in World War I. 
(3) Doenitz 's orders of 1942 though 
deserving of censure for their ambiguous 
terms, did not in fact order the killing 



of shipwrecked survivors of sunk enemy 
or neutral merchant ships. Of that 
Doenitz was not guilty. (4) On the other 
hand, the rescue provisions required by 
the Protocol of 1936 had not been 
carried out and the defendant had 
ordered that they should not be carried 
out. In answer to the contention of the 
defense that the security of the attack- 
ing submarine takes paramountcy over 
rescue and that enemy aircraft render 
such rescue impossible, the Tribunal 
pointed out that the Protocol is explicit 
and makes no allowance for such de- 
fenses. In memorable words it stated: 
"If the commander [of the submarine] 
cannot rescue, then under the terms [of 
the Protocol] he cannot sink a mer- 
chant vessel and should allow it to pass 
harmless before his periscope." Doentiz 
was therefore found guilty of issuing an 
order violative of the Protocol in this 
respect. (5) In the matter of sentence, 
and not of guilt, the Tribunal had regard 
to the order of the British Admiralty 
Order of May 1940, ordering the sinking 
of all vessels at sight in the Skagerrak, 
and to the unrestricted submarine war- 
fare carried on by Admiral Nimitz in the 
Pacific Ocean from the first day the 
U.S. entered the war. In the light of 
these considerations the Tribunal 
stated: "The sentence of Doenitz is not 
assessed on the ground of his breaches 
of the international law of submarine 
warfare. " This passage has been the sub- 
ject of some debate. One thing, how- 
ever, emerges. The Law of the Protocol 
of 1936 binds those who order and 
operate submarines in war. Operational 
necessity and the safety of the sub- 
marine are not valid defenses to its in- 
fringement. It also lets in the more 
dubious proposition that the arming of 
merchantmen, their use in the naval 
intelligence system, and the order that 
they ram submarines, exposes them to 
attack without warning by enemy sub- 
marines. To the extent that the arming 
of merchantmen will probably be the 
normal practice of belligerents, that part 



254 



of the judgment which concerns us here 
i- the condemnation ol Doeniti lor 
violation o( the rescue provisions of the 

Loudon ProtOCoL 

rhat aspect ol naval hostilities which 
i> likeK to prove <>l BOme importance in 

future armed conflicts is the nuclear 
bombardment oi the enem\ hinterland 
from submarines or surface men-of-war. 

1 he "Polaris device, and improvements 
upon it, are probabl) the most effective 
weapon <>l war yet devised. Here the law 
relating to bombardment of the land 
from ships at sea, and the law relating to 
th«' use "I a longer-range mi>>ile with a 
nuclear potential, come into play. The 
law of naval bombardment is still sub- 
ject to the principles ol customary law 
codified in Articles 25 to 27 of the 
Hague Regulations of 1907 as modified 
l>\ Hague Convention No. VII of the 
same year respecting Bombardment by 
Naval Forces in time of War. To the 
contention that the bombing practices 
by air forces in World War II have modi- 
fied or shifted the content of those cus- 
tomary rules, it may be said that such a 
contention is difficult to maintain 
against a codification of custom ex- 
pressly subscribed to by States in those 
Conventions. Further, the language of 
the Air Ministry directive of 29 Oc- 
tober, reaffirms, at least for the U.K., 
the customary prohibitions of indis- 
criminate bombardment. After ordering 
that the military objective criterion is to 
be abandoned in the bombing of Ger- 
many. Japan, and Italy, as opposed to 
the occupied territories, except that the 
provisions of the Geneva Red Cross 
Conventions of 1929 were still to be 
observed, the directive continued: 
. . . "Consequent upon the enemy's 
adoption of a campaign of unrestricted 
air warfare, the Cabinet have authorized 
a bombing policy which includes the 
attack on enemy morale . . .." By 
issuing this directive the British Govern- 
ment made it clear that it knew that the 
law made a clear distinction between 
legal and illegal bombing, that it knew 



what that distinction was, that it would 



ap| 



n\ 



le«ral 



measures in occup 



led t 



erri 



lories, and h\ contrast, illegal measures 
Over the enerm home territories, and 

that it would rel\ upon the enrm\ 

prior illegalities in justification for its 

action. That is really an assertion ol the 
right to exercise reprisals. Reprisals im- 
plicitly admit that if their occasion i> 

not justified in law, your actions under 
that head stand condemned as illegal. In 

fact, by October L942, Germany was 

not in a position to carry out indis- 
criminate bombing in the West. Doubt- 
less, other gross violations of its law of 
war could have been laid at Germany's 
door at that time, but that was not the 
legal platform upon which the Cabinet 
chose to base its attack on "enemy 
morale.' 1 

Now Hague Convention No. IX, on 
world bombardment, has been ratified 
by the U.S., Russia, and China, but not 
by the United Kingdom. However, the 
limitation of legitimate bombardment 
to military objectives contained therein 
restates the customary law. What has 
happened, however, is the considerable 
extension of the conception of "mili- 
tary objectives'' since that date. The in- 
discriminate or deliberate bombing of 
the civilian population by naval ships 
would stand condemned by the Hague 
Convention No. IX, Hague Convention 
No. IV, and the principles of the cus- 
tomary law. It can be said that the legal 
limits of land targets are not extended 
because bombardment is by naval ships 
on the high seas. 

The nuclear aspect of such naval 
bombardments is exposed to the criteria 
of lawful military objectives, the con- 
demnation of the use of poison or of 
weapons calculated to cause unneces- 
sary suffering, the implications of the 
Geneva Gas Protocol of 1925 con- 
demning of "poisonous or other gases, 
and all analogous liquids, materials, or 
devices," and the principles of humanity 
which lie at the root of the customary 
and conventional law of war. It is not 



255 



possible to give a legal answer at large. 
Each particular set of circumstances sur- 
rounding a specific user of a nuclear 
weapon, as to target, effects, and inten- 
tion, will have to be taken into account, 
if there is anybody left to carry out that 
appraisal. Further, even if it be estab- 
lished that a specific user of the nuclear 
weapon is, in the context of the specific 
facts, violative of the law of war, it has 
to be remembered that the user may 
take its justification as an act of reprisal, 
unless the victims are those classes of 
war victims against whom reprisals are 
expressly prohibited by the Geneva 
Conventions of 1949. What is much 
more likely is that the enemy which has 
been the object of a nuclear strike will 
be physically precluded from carrying 
out its humanitarian obligations in rela- 
tion to the prisoners of war, and the 
enemy sick and wounded in its hands. 
What must, I think, be admitted is that 
nuclear weaponry such as we have at the 
moment is not likely to be used in cir- 
cumstances that can be legally justified 
except possibly as an act of reprisal. To 
talk of objectives such as a fleet in the 
ocean, or an army in the desert, is 
academic, for such targets are not likely 
to be presented to an enemy with a 
nuclear potential unless the direction of 
the war has gone sadly awry. 

The two kinds of naval hostilities dis- 
cussed here do more than touch the 
fringe of the law relating to hostilities at 
sea. 

The Geneva Conventions of 1949. 

The four Conventions concluded at 
Geneva in 1949 substantially exhaust 
the modern law relating to the treat- 
ment of war victims. The first governs 
the treatment of the sick and wounded 
in the armed forces in the Field and 
supplants the earlier Convention of 
1929. The second deals with the treat- 
ment of the wounded, sick, and ship- 
wrecked members of armed forces at 
sea, replacing the earlier Convention of 
1907. The third deals with the treat- 



ment of prisoners of war, replacing the 
earlier Convention of 1929. The fourth 
deals with the protection of civilian per- 
sons in time of war. This is an innova- 
tory Convention to the extent that no 
such multilateral Convention dealing ex- 
clusively with civilians previously ex- 
isted. The Civilians Convention is the 
most complex of the four. It applies to 
a limited extent to the entire civilian 
population of the States in conflict, but 
more effectively to the civilians who 
find themselves in the domestic terri- 
tory of the opposing belligerent, and, in 
considerable detail, to the civilian popu- 
lation in occupied territory. Finally, it 
regulates the treatment to be accorded 
to civilian internees whether held in 
enemy domestic territory or in occupied 
territory. 

The Conventions have this in com- 
mon: each of them has been forged in 
the light of the harsh experiences of the 
recent war, recently described as "the 
mortgage of the past," perhaps the out- 
standing euphemism of our time. They 
are multilateral, law-making conven- 
tions, humanitarian in purpose and anti- 
war in philosophical inclination. They 
comprise in all some 417 articles varying 
from principles of great width to de- 
tailed prescriptions about the issue of 
tobacco and soap, matters of much 
moment to prisoners of war and in- 
ternees. To date, 106 States have sub- 
scribed to them, the most recent being 
Canada in May of this year. Each of the 
Four Conventions contains certain "com- 
mon articles" which set the framework 
and provide for the enforcement of 
them. These common articles, among 
other things, provide that the Conven- 
tions must be respected in all circum- 
stances. This precludes reciprocal obliga- 
tions and means that the failure of the 
enemy to comply with them does not 
absolve the other Party to the armed 
conflict from its obligations thereunder. 
Apart from the express prohibition of 
reprisal action against the persons pro- 
tected by these Conventions, this 



256 



Common article prohahK has the same 

effecl oi its own force. The Conventions 

are to appk in all cases of declared war 
or oi an\ * >t h«*r armed Conflict. The) 

Mud the Parties even in relation to i 

State which is HOI I Parts , provided tin- 
latter accepts and applies them. In that 
case onk is the obligation of a Party to 
the Convention reciprocal. Each Con- 
vention has (Mic \rticle ('.)) limited ex- 
clusively to internal conflicts within tin; 
territory oi a Party. Tin' basic minimum 
humanitarian prohibitions then come 
into play and hind Government and 
rebel tones alike, irrespective of any 
question of recognition of belligerency 
being accorded or denied to the in- 
surgents. The Article has been called "a 
Convention in miniature.' It prohibits 
murder, mutilation and cruel treatment, 
the taking of hostages, humiliating and 
degrading treatment, and the passing of 
sentences or executions without trial by 
a proper tribunal affording the judicial 
guarantees demanded by civilized 
peoples. The Article in no way affects 
the legal status of the Parties to the con- 
flict. Rebels remain such and are ex- 
posed to the domestic law of treason if 
the rebellion should fail. 

No person protected by the Conven- 
tion may renounce the rights conferred 
upon him by the Conventions. The 
availability and functions of the Pro- 
tecting Power are provided for with 
some particularity. The Protecting 
Power plays a prominent part under the 
regime of the Conventions in securing 
their observance. They do so in the in- 
terests of the person protected under 
each Convention. The Conventions 
define the class of person protected 
under each one of them. The bulk of the 
Articles deals with the specific norms 
of humanitarian treatment which must 
be accorded to the persons protected by 
them. All of these protected persons 
have this in common: that they have, by 
the tide of war, fallen into the power of 
the enemy and either have never been 
combatants or are no longer, through 



wounds, BickneSS, or capture, able to 
take part in hostilities. Each of these 
norms has been framed in the light of 
the experience of the last war, particu- 
lar!) in relation to the maltreatment of 
civilian persons in occupied territory, 
prisoners of war and tin; persons placed 
in concentration and work camps run 
by the Germans and Japanese. Each 
Convention requires the Parties to in- 
clude instruction as to their contents in 
all programs of military instruction and, 
if possible, of civil instruction. It is diffi- 
cult to exaggerate the importance of 
this provision and it is equally difficult 
to contend that Governments are ob- 
serving it at the present time. This provi- 
sion calls for implementation in time of 
peace. It must now be considered as a 
modality, and not the least important 
one, for the enforcement of the law of 
war. The number of States bound by 
these Conventions, 106 in all, the width 
of the provisions contained in them, and 
their number, the substantial part of the 
modern law of war represented by these 
Conventions, the virtual replacement of 
the law of war criminality by the con- 
ception of "grave breaches'' as defined 
in these Conventions, give the "common 
article" requiring this instruction a para- 
mount importance. Lack of its ob- 
servance has already had some unfortu- 
nate repercussions in places where it can 
be ill-afforded, e.g., in the conduct of 
members of national contingents 
forming part of United Nations peace- 
keeping forces. It is probably correct in 
law to say that these Conventions do 
not apply as such to these forces, but 
there can be little doubt that every 
measure should be taken to ensure that 
the members of national contingents in 
such forces comport themselves in 
accord with the humanitarian dictates 
of these Conventions. With that end in 
view certain measures are now being 
taken by the Secretary-General towards 
ensuring that such instruction has been 
given by a Member State as a pre- 
condition for its national contingent 



257 



participating in a UN peacekeeping 
Force. 

The Conventions have put States 
Parties to them under the legal obliga- 
tion to enact legislation necessary to 
provide effective penal sanctions for all 
persons ordering or committing any of 
the grave breaches as defined in each 
Convention. Grave breaches include 
willful killing, torture, biological experi- 
ments, willfully inflicting great suffer- 
ing, and deportation. States Parties have 
likewise the legal duty to search for, and 
bring to trial, persons regardless of their 
nationality who have ordered or com- 
mitted such grave breaches. Such trials 
must take place before the ordinary 
courts of the State asserting jurisdiction. 
This provision, within its proper limits, 
excludes the Nuremberg and other types 
of international war crimes jurisdictions 
for the future and has made a profound 
change in enforcement law. 

The Maritime Convention, the 
Second Geneva Convention of 1949, 
establishes the basic principle that mem- 
bers of the armed forces and those 
assimilated to them, such as auxiliaries, 
employed civilians, members of or- 
ganized resistance movements, who are 
at sea and who are wounded, sick or 
shipwrecked, must be respected and 
protected in all circumstances. Subject 
to that provision they are entitled, when 
they fall into enemy hands, to prisoner- 
of-war status under the Prisoners-of-War 
Convention. The Maritime Convention 
specifies the various classes of hospital 
ships and the protection to which they 
are entitled, and the type of marking 
which they must display. Reprisals are 
prohibited against the sick, wounded, 
and shipwrecked, and the personnel, 
hospital ships, and equipment protected 
by the Convention. This prohibition did 
not appear in the earlier Maritime Con- 
vention of 1907. 

The Prisoners-of-War Convention, the 
Third Geneva Convention of 1949, will, 
for the future, be the charter of rights 
of the prisoner of war. Apart from the 



common articles earlier outlined, this 
Convention defines in detail the class of 
persons who are to enjoy that status, 
whenever they have "fallen into the 
power of the enemy." It includes mem- 
bers of organized resistance movements 
operating within or without occupied 
territory openly and under discipline, 
and the civilian population which spon- 
taneously takes up arms on the ap- 
proach of an invader provided that 
members of both categories carry arms 
openly and conduct themselves in ac- 
cordance with the law of war, a very 
unlikely contingency. Prisoners of war 
have that status, and the rights con- 
ferred upon them by the Convention, 
from the time they fall into the hands 
of the enemy until their final release 
and repatriation. They cannot effec- 
tively renounce these rights even if they 
try. If there is any doubt as to status, 
and the person concerned has com- 
mitted a hostile act, he will receive the 
benefit of prisoner-of-war status 
pending determination of status by a 
competent tribunal. 

The general scheme of this Conven- 
tion is to apply to the prisoner of war 
the same standards of treatment which 
prevail in the armed forces of the 
Detaining Power. In matters of disci- 
pline and trial the prisoner of war is to 
be tied into the military law system of 
the Detaining Power in most respects. In 
particular he is to be tried by military 
courts except where the members of the 
armed forces of the Detaining Power 
would be tried by the civil courts for 
the like offense. One outstanding inno- 
vation has been made in this context. 
By Article 85 prisoners of war prose- 
cuted under the laws of the Detaining 
Power for acts committed prior to 
capture shall retain, even if convicted, 
the benefit of the Convention. This 
provision extends to acts of war crimes 
of any character. It means that in 
respect to such acts a prisoner of war 
must in the future be tried either by a 
military court or an ordinary civil court 



2:> 8 



.»i the Detaining 1 *« > w <-r. Special wai 
crimes tribunals, Nuremberg, and other 
types «>i international tribunals, are ex 
eluded irom jurisdiction over all types 
of war crimes committed h\ prisoners 
ol war whether or not such crimes are 
covered h\ the extensive definition of 
grove breaches contained in the Conven- 
tions. 

I In- Convention, in common with 
the other three, dors not Beek to deal 
with the law ol combat except in one <>r 
two marginal matters, and thru only 
obliquely. It is arguable, but the better 
opinion Beems to be, thai a member of 
the armed forces caught whilst engaged 

in espionage would not be entitled to 
claim prisoner-ol-war status, although 
he ma\ have the limited protection 
conferred upon such persons under the 
fourth, the Civilians Convention. A 
prisoner of war upon conviction has the 
same rights ol appeal as are open to 
members of the armed forces of the 
Detaining Power and must serve his 
sentence in tin- same establishment, 
even for war crimes convictions. The 
USSR and its associates have reserved 
upon this provision but the reservation 
has been firmly rejected by the U.K. 
Th» resulting legal position is not clear, 
but with the experience of World War 
II, when the USSR found itself invaded 
without the protection of the Geneva 
Prisoners-of-War Convention of 1929, it 
is not thought that the USSR will 
contend that it is not in treaty relation- 
ship with the objecting Parties. In the 
detailed provisions relating to accommo- 
dation, clothing, food, comforts, recrea- 
tion, and the practice of religion, the 
standard adopted has been that of the 
armed forces ol the Detaining Power. 
Th<- work which an enlisted man may be 
ordered to do is expressly recited. Other 
work is prohibited. Officers may not be 
ordered to do an) work. Their pay code 
is set out with precision. The informa- 
tion a prisoner of war may be required 
to furnish his captor is strictly con- 
trolled. His right to complain and to 



have access to the representatives of the 

Protecting Power lor that purpose are 

expre88T) established in the Convention. 

In all the Convention sets up a 

formidable regime of rights. This regime 

has now made the prisoner-of-war status 

a matter ol vital importance. 

The Enforcement of the Law of War. 

(Or Mean- of Securing Legitimate War- 
fare). The ways in which the law of war 
ma) be enforced are various. There are 

meta-legal forces in favor of legitimate 
warfare such as domestic and neutral 
opinion, self-interest and fear ol adverse 
consequences, to name only a few. With 
these, this talk is not concerned. We do 
well, however, to take note of their 
existence for they an; the background 
of reality against which the legal modali- 
ties for the enforcement of the law of 
war operate. There are, conversely, 
other meta-legal forces which operate in 
the opposite direction. These arc the 
factors dissuasive; of law observance in 
time of war. War being the supreme 
antisocial relationship between men and 
tin- ultimate challenge to law and order, 
conducted for the purpose of over- 
coming an opponent, there is always at 
work a powerful urge to disregard legal 
restraints in the conduct of war. Public 
utterances by war leaders avowing 
respect for the Law of War and denying 
any breach of it arc frequently calcu- 
lated exercises in hyprocisy, the tribute 
that vice pays to virtue. However, even 
in these statements there can be seen 
the strong impression that it is a bad 
thing to be discovered, flagrante delicto, 
violating the Law of War. The wholesale 
gassing of the Jews was not made a top 
secret matter merely because there 
might be disorders outside the gas 
chambers, as there were on two famous 
occasions. 

We are here concerned primarily with 
the legal modalities available for the 
enforcement and observance of the Law 
of War. Then; are two things I would 
like to stress at this point: (1) The trial 



259 



of war criminals is only one of those 
modalities and not necessarily the most 
effective or the most likely to be re- 
sorted to by States or organizations of 
States in the future. (2) Of the war 
crimes jurisdictions which functioned 
after World War II the I.M.T.s at Nurem- 
berg and Tokyo were the only interna- 
tional tribunals. Each of them tried one 
case only. The vast majority of war 
crimes trials took place before munici- 
pal civil or military jurisdictions, either 
specially created, or forming part of the 
ordinary criminal jurisdiction of States 
or as part of the system of Occupation 
courts. 

I would mention here some six 
modalities and have time to discuss only 
two. They are: (1) Measures of self-help, 
e.g., reprisals, now limited to the con- 
duct of hostilities, as reprisals against 
war victims are expressly forbidden for 
the majority of States by the operation 
of the Geneva Conventions of 1949; the 
taking of hostages, now forbidden by 
the Geneva Conventions of 1949, and 
the trial of war criminals, particularly 
the obligatory trial and punishment of 
those who commit grave breaches of the 
Geneva Conventions; (2) complaints to 
the enemy, to neutral States, to the 
Protecting Power, the International 
Committee of the Red Cross, the use of 
good offices, mediation,, and interven- 
tion by neutral States; (3) payment of 
compensation either under Article 3 of 
the Hague Regulations of 1907 or 
reparation payable under the customary 
law principles of State responsibility, 
and reparations or indemnities payable 
under Peace Treaties; (4) educative 
measures of instruction in time of peace 
and war by States under the obligations 
in the Geneva Conventions of 1949 and 
the Cultural Property Protection Con- 
vention of 1954; (5) State responsibility 
under the Genocide Convention of 1948 
to be determined by the International 
Court of Justice, and the award of 
reparation thereby; (6) recommended 
action by the General Assembly or even 



directed action by the Security Council 
under the UN Charter. Of these six I 
take up here only war crimes trials and 
the educative process under the Geneva 
Conventions. The former operates after 
the commission of criminality, the other 
before. 

The Nuremberg I.M.T. jurisdiction 
was based upon the London Agreement, 
and the Charter thereto appended, con- 
cluded between the four victory powers 
August 1945. It was the joint exercise 
under a treaty of a jurisdiction that was 
legally available to each of the four 
participating States by customary law. 
A State has by customary law the right 
to try enemy war criminals who fall into 
their hands. Further than that, any 
State has such a jurisdiction whether or 
not it participated in the war or whether 
it existed at the time. The analogy 
offered is the universal customary law 
jurisdiction over pirates. The most 
recent precedent for this claim was the 
Eichmann Trial in 1962. In the Nurem- 
berg Trial the tribunal was set up by the 
London Agreement and its Charter. The 
latter instrument determined the class 
of the accused and the types of war 
criminality within the Tribunal's juris- 
diction. It also denied the exculpating 
effect of official position, or of superior 
orders. To this day a controversy con- 
tinues whether in so doing the Charter 
restated old law or made new substan- 
tive law. War criminals had long been 
considered by customary law as 
common enemies of all mankind, as are 
pirates. In setting up a quadripartite 
tribunal the four States were by treaty 
doing in concert what each of them was 
entitled by customary law to do indi- 
vidually. Not only did a number of 
States subsequently adhere to the 
London Agreement under its terms, but 
the principles of the Charter and the 
Judgment were reaffirmed by unani- 
mous vote of the General Assembly in 
1946. This is a matter of considerable 
legal significance indicating subscription 
by a large number of States to the 



260 



substantive lam ol war crimes, including 
the principle oi in < 1 i\ idual criminal 
responsibility ami to the lawful exercise 
ot criminal jurisdiction over such indi- 
\ iduals, 

rhe architect ol the Nuremberg Trial 
was without doubt the late Mr. Justice 

Jackson, in the lace oi considerable 
opposition from the late Sir Winston 

Churchill. The latter favored the im- 
mediate execution without trial of some 
-i\ or more leading Nazis. Sir Winston in 
the aame month, \pril 1945, expressed 
his horror when that late overtook 
Mussolini. As early as 1941 Mr. Justice 
Jackson had expressed his view before 
the American Bar Association that 
' ... we may be certain we do less 
injustice by the worst possible processes 
of the law than would be done by the 
best use of violence." Nuremberg was in 
thr result far from being the worst 
process of the law. If any injustice were 
done, in my view it was in the allocation 
of incompetent German defense counsel 
to men faced with a devastating indict- 
ment, conviction upon which carried 
the death penalty. This inadequacy of 
the German defense counsel may be 
seen as a direct consequence of the 
denial, over 12 years, of the Rule of 
Law, whether municipal or interna- 
tional, in the Third Reich. The study of 
International Law was not included in 
Hitlers plans for the "thousand-year 
Reich.' 1 

After World War II the State victors, 
both in the East and the West, estab- 
lished war crimes jurisdictions under 
their municipal law. Some jurisdictions, 
such as the French, operated in domes- 
tic and in occupied territory, and con- 
sisted of different tribunals applying a 
different approach to the legal idea of 
war criminality according to where they 
sat. Other countries, such as the U.K., 
exercised war crimes jurisdiction only in 
occupied territory in the West. The U.S. 
exercised civil and military jurisdiction 
in occupied territory in the East and in 
China. Enemy States such as Germany, 



Italy. Hungary, Bulgaria, and Roumania 

Bel up their own national war Climes 
jurisdictions. The trial of war criminals 
continues in Germany at the moment of 
Speaking. There was a multiplicity ol 
jurisdictions comprising civil, military, ad 
hoc, permanent and Occupation courts. 
Then' was also some variation in the 
Substantive law applied and in the rules 
of evidence and procedure adopted. 

It is in the light of this experience 
that the Geneva Conventions of 1949 
have established one jurisdiction lor the 
trial of "grave breaches" of those Con- 
ventions. In the case ol civilian accused, 
of any nationality, friend, foe or neu- 
tral, wheresoever the scene of the crime, 
the jurisdiction is to be that of the 
ordinary courts of the State asserting 
jurisdiction. The exercise of this crimi- 
nal jurisdiction is obligatory for a State 
bound by these Conventions, whenever 
the accused and the evidence repose in 
its hands. In the case of accused pris- 
oners of war charged with "grave 
breaches" or any other form of war 
criminality, including a crime against 
peace, the jurisdiction is to be that of 
the military courts of the Detaining 
Power available for members of the 
latter's armed forces charged with a like 
crime, unless under the law of the 
Detaining Power a civil court would 
have that jurisdiction. This is a big 
change in the law. It is designed to 
remove the multiplicity of jurisdictions 
outlined above and to ensure that foe 
and national of the trying State go 
before the same court when charged 
with "grave breaches," and, in the case 
of prisoners of war, with war criminality 
generally. Today it must be considered 
that the area of "grave breaches" will 
cover most serious war crimes in the 
strict sense, excluding crimes against the 
law of combat. Today reprisals still exist 
as a method of law enforcement, but in 
a strictly limited area, namely, combat 
law. In relation to war victims reprisals 
are now forbidden. Hostages may no 
longer be taken for any purpose. 



261 



Those who order a war crime and 
those who commit one are individually 
responsible. Those who commit such a 
crime under superior orders will find 
that different States take different views 
of the accused's responsibility. The 
majority of States trying war criminals 

after the last war seems to have adopted 
the view that such orders of themselves 
are not a lawful excuse. The Nuremberg 
Charter allowed for only a mitigating 
effect upon sentence where the accused 
acted under superior orders, but the 
Judgment stated: "The true test ... is 
not the existence of the order but 
whether moral choice was in fact pos- 
sible.' This was not a very satisfactory 
formula. It would seem that the 
Tribunal meant that the superior order 
is not of itself a lawful excuse; other 
factors, and drastic ones at that, must 
be present before a valid defense ap- 
pears. Duress, necessity, or physical 
coercion may be added as separate or 
cumulative defenses, but they are not 
the same as superior orders. It would 
seem that the answer must lie in the 
consensus of the criminal law principles 
of civilized States unless it is to be 
argued that States have adopted the 
Nuremberg Judgment view, as affirmed 
in the General Assembly Resolution of 
1946 referred to above. The Interna- 
tional Law Commission ultimately 
offered the formula that the accused 
would be responsible only if in the 
circumstances it was "possible" for him 
to act contrary to superior orders. That 
does not help much. The question of 
who has the onus of proof in this matter 
is, in the Anglo-American system of 
criminal procedure, a matter of some 
importance. In fact, most convicted war 
criminals committed their acts con 
amore and not under pressure of orders. 
The question of superior orders 
brings in the last of the law enforcement 
modalities I want to mention here: the 
requirement of instruction in the 
Geneva Convention of 1949. A civilian 
or serviceman thus instructed will not in 



the future be able to plead as a defense 
that he knew not that his conduct was 
prohibited by the law of war or that he 
thought that the order he received was 
lawful. Neither will he be able to ad- 
vance the defense, when charged with a 
"grave breach," that he thought it was a 
reprisal order, reprisals being forbidden 
by those selfsame Conventions in rela- 
tion to protected persons and prisoners 
of war. However, if charged with a 
combat crime, such as the use of poison- 
ous gas, or the criminal use of a nuclear 
weapon, he may plead that he acted not 
only under a superior order but under a 
reprisal order of his Government. The 
limits of lawful reprisal action are strin- 
gent. On principle it would seem that 
the accused is likely to be held respon- 
sible even where he genuinely thought, 
but in the event mistakenly, that a 
reprisal had been ordered, or if it 
transpires that its exercise was unlawful. 
In such circumstances, however, the 
mitigation is so cogent that the sentence 
would reflect a minimum guilt, assum- 
ing the good faith of the accused. If 
such facts were known to a prosecutor 
in advance, he would be well advised 
not to launch the case. The crux of the 
legal difficulty may be; where does the 
onus of proof lie, on the prosecution or 
the defense— a matter that may be deter- 
mined by municipal law? That, I sug- 
gest, is one of the reasons why trials of 
war criminals during hostilities are not 
calculated to advance international jus- 
tice. Evidence of superior orders and the 
exercise of reprisals will not normally be 
available to the accused until hostilities 
are finished. Against this consideration 
must be set the long period of pretrial 
custody that a person charged with war 
crimes may have to wait until his trial. 
It does not advance the cause of interna- 
tional justice for the accused to receive 
a sentence of 5 years imprisonment and 
for the court to order his release then 
and there because he has spent that time 
in pretrial custody. 

On balance I am inclined to think, 



2()2 



after a long and somewhat painful ex- 
perience fan war Crimea forums, that the 

mor.il. -n< ial, ami disciplinary effects oi 
thorough instruction in 1 1 1 «* law oi war 
in (general, ami in tin- Geneva Conven- 

tionfi <»l 1 9 19 in particular, now a 

matter oi high legal obligation, ma) in 
the long run prove more persuasive of 
law observance ami dissuasive of its 
breach than the execution or long im- 
prisonment of war criminals. Such in- 
struction ma) obviate criminalit) before 
it- commission. Trials take place after 
the criminal action when, clearly, in- 
struction has tailed in its purpose. In 
an) event, the educative effect upon tin* 
executed war criminal is minimal. The 
effect of a death upon tin; condemned's 
laniih is not to he ignored. The sight of 
mothers, wives, and daughters being 
removed from the courtroom suffering 
from acute hysteria will remain with me 



for the rest of my life, in my view, for 
what it is worth, war crimes trials 
should he held in reserve for the more 

serious types oi war criminality, i.e., as 

the ultimate sanction. Instruction in tin- 
law ol war and the humanitarian code 

of conduct enjoined thereby, render the 

recipient aware that there are para- 
mount legal norms, based upon the 
moral, humane, and rational order, 
which transcend municipal laws and 
superior orders at variance with or 
denying that order. Governments which 
fail to give that instruction in tin' law of 
war now required by the law of war 
render their armed forces and civil 
population and the entire community of 
civilized men and women, a grave dis- 
service which posterity will not fail to 
condemn. Governments have been given 
full and adequate warning. Let them 
disregard it at their peril. 



t 



263 



LAW OF NAVAL WARFARE 

William 0. Miller 



Today I am going to speak to you 
about a problem area which has been 
the subject of much discussion among 
publicists, that is, whether or not ex- 
isting rules of naval warfare are suf- 
ficient to meet the needs of current 
naval operations. Staled in another way, 
do existing rules of international law 
have real relevance to present and fore- 
seeable uses of naval lorce in situations 
oiten characterized as short of war? In 
dealing with this subject it is not my 
intent to offer solutions, but I do hope 
to stimulate your thinking on this sub- 
ject, one 1 consider extremely important 
to the operation of contemporary naval 
forces. 

Most traditional international law 
publicists have approached their subject 
by setting up two obvious categories 
within which to discuss international 
legal rules—the laws of "war" and the 
laws of "peace." The legitimacy of the 
use of naval power, as with other 



coercive measures, has been generally 
discussed in the context of these two 
extremes. Using this rationale, the spe- 
cific use of force at sea in a given 
situation can be characterized as legal or 
illegal, depending upon the existence of 
a slate of war. Such thinking has been 
criticized by many as obviously unsatis- 
factory, since, on the contemporary 
scene, slates sometimes perceive a need 
to exercise some limited degree of force 
at sea which they find difficult to 
justify under a peacetime regime, but 
yet find themselves unwilling to declare 
a stale of war. However, to simply say 
thai current situations involving possible 
use of naval force may not fit neatly 
into one or the other of these tradi- 
tional categories docs not adequately set 
forth the true nature of the problem. 
Nor does it necessarily lead to the 
conclusion that new rules are required. 
This, then, is the broad question 
which is to be examined here, i.e., 



264 



whether lliere i> .1 need lor U new set of 

rules ol naval warfare lo .ij»|il\ in 
-iiu.ihi mi > which arc neither "war" nor 
'peace in the classic sense. 

I musl .idil .in aside at ihis point, 

primarily lu*;ni >** 1 know lli.il wIlCII UI1C 

i- firs! <\|iomi| (o inlcrnalional law, and 
particularly lo the "laws ol war, ques- 
tions arise along tin* i<dlowin" Iiik ;s: 

• Is mil war simply tl mutter <>l 1 1 1 « * 
Btrongcr or more operationally adept 
nation winning a victor) through skillful 
application ol force? 

• II this is true, arc there really any 
laws ol war or is it jusi an academic 

exercise ol lawyers and politicians? 

• On the other side ol the coin, il 
rational men now agree thai war is a 
destructive force which must l>e aban- 
doned as an instrument ol national 
policy, why should rules lor the con- 
duct ol war he formulated al all? 

1 will not attempt to deal specifically 
with these questions hnl will briefly 
comment on the necessit) lo formulaic 
rules lor the conduct ol war. 

There are two basic principles which 
guide any inquiry into ihe rules of 
warfare. These are the principles ol 
military necessity and the principle ol 
humanitarianism. The specific rules ol 
warfare both on land and on the sea, 
which have been generally agreed upon 
for tin- past 100 years, have sought lo 
bring these Iwo concepts into balance. 
I he essential Lhrust ol these* rules for 
warfare at sea has been to reserve lor 
the belligerent, within the bounds of 
humanitarianism, the rijiht lo attack 
those objects which were recognized as 
legitimate military objectives. It also 
provided the belligerent with tin; right 
to use such force a- may lie necessary lo 
attain his objective, while al the same 
lime providing protection— as was physi- 
cal!) possible under the circumstances— 
lo noncombataiits who may become 
involved ami to survivors ol the action. 
Also, it i- generall) agreed that the 
major political purpose ol the tradi- 
tional law ol naval warfare was lo 



attempt to limit the effects of combat 

at sea as much as possible holh as to the 
area ol the conflict and as lo ihe 

participants; that is, to circumscribe the 

conflict so thai it did not spill over lo 

affect any more than necessary ihe 

rights ol Stale 8 who wen* not parties. It 
was in this context that ihe great body 
ol law regarding belligerent and neutral 

rights and duties as we know il today 



arose. 



Neutrality is a concept in traditional 

inlcrnalional law which arises only 
when a state of war cxisls between Iwo 
or more other stales. Traditional law 
gave belligerent rights and obligations lo 
the parlies to a war. For those slates not 
participating, the law provided corre- 
sponding neutral obligations and rights. 
The existence of a legal stale of war 
brought these rights and obligations into 
existence. 

Neutrality is defined under tradi- 
tional international law as the nonpar- 
ticipalion ol a state in a war between 
other slates. The legal significance of 
such rtoiiparticipalion is that il brings 
into operation numerous rules whose 
purpose is the regulation of relations 
between neutrals and belligerents, pro- 
viding certain rights and obligations for 
both parties.** The principle of impar- 
tiality holds thai a neutral stale is 
required lo lullill its obligations and 
enforce its rights in an equal manner 
toward all bel I i wren is. 

Although ihe rules ol neutrality wen; 
violated on a large; scale during bolh 



♦INWIP 10-2, The Law of Naval Warfare 
is a generally accurate summary of the tradi- 
tional rules of naval warfare. 1 1 is premised on 
the "war" and "peace" categorizations of 
classical writers. Masic to this traditional 
treatment are Ihe concepts of belligerent and 
neutral rights which, in theory, neatly takes 
into account both participants and nonparties 
pan Is in a conflict. 

**Thc hulk of these rules as Ihey relale to 
maritime warfare are set forth in Ihe Hague 
Convention on the Kights and Duties of 
Neutral Powers in Maritime War. 



265 



World War J and World War II, the J 907 
Hague Conventions on the Rights and 
Duties of Neutral Powers in Land and 
Maritime Warfare, to which the United 
Stales and the U.S.S.R. are parties, still 
states the hasic law of neutral-belliger- 
ent relationship. Generally these rules 
provide for: 

• inviolability of neutral territory or 
territorial waters from hostilities; 

• no use of neutral territory as a 
belligerent base of operations for fitting 
out of ships or other combatant forces 
or as a warship sanctuary for longer 
than a stated period; 

• no use of neutral territory for the 
transshipment of belligerent troops or 
war supplies; 

• a neutral is not bound, however, 
to prevent the export or transit for use 
of either belligerent or war material. 

Up to and including WW II, it was 
customary on the outbreak of a state of 
war for nonparticipating states to issue 
proclamations of neutrality, although 
such is not required. In both WW I and 
WW 11 the United Slates did issue such 
declarations, and before WW II, in a 
series of neutrality acts from 1935 
through 1939, we actually legislated our 
neutrality. Stringent adherence to the 
belligerent-neutral rights and duties 
method of establishing rules for warfare 
follows logically from the "war"- 
"peace" dichotomy upon which such 
rules are premised. Perhaps the best 
example of this is the set of rules 
applicable to naval blockade. 

Traditional or close-in blockade had 
as its basis the belligerent right to 
embargo sea commerce to and from its 
enemy — to stop the flow of those goods, 
both inward and outward, which en- 
hance the enemy's warmaking effort. 
Blockade was originally conceived and 
executed as the maritime counterpart of 
siege and sought the total prohibition of 
maritime communication with all or a 
designated portion of the enemy's coast- 
line. Its focus was on ships, unlike the 
law of contraband where the focus was 



on cargo. Blockade, by its nature, in- 
volves not only interference on the high 
seas with vessels flying the enemy's flag, 
but also with vessels flying the flag of 
neutral states. One of the most funda- 
mental considerations in blockade is 
that it applies to belligerent and neutral 
vessels alike; hence, one of its restric- 
tions is on the otherwise legally un- 
restricted right of neutral states to trade 
with whomsoever they wish. In light of 
this fact, it is not surprising that neutral 
states insisted that the enforcement of a 
blockade must be in accordance with 
strict and clear rules. For the traditional 
close-in blockade to be lawful it must 
be: 

• enforced by sufficient ships to be 
elleclive (i.e., to create a substantial risk 
of apprehension for any would-be 
blockade runner); 

• enforced impartially against all 
ships, belligerent and neutral alike; 

• commenced with proper notifica- 
tion; and 

• it must not bar access to neutral 
ports or coastlines. 

The last requirement has virtually 
precluded use of traditional blockade in 
modern warfare, since the deployment 
of the blockading force close; in to the 
blockaded area is often impossible from 
an operational viewpoint, and geo- 
graphical considerations make it dif- 
ficult in many regions to .blockade 
farther at sea and still not interfere with 
innocent neutral shipping or bar access 
to neutral ports. 

Conversely, under traditional rules, 
establishment of a belligerent blockade 
would generate corresponding neutral 
rights and obligations for nonparlici- 
pants in the conflict. A neutral must: 

• require ships flying its flag to 
respect the blockade; 

• require its ships to navigate so as 
not to unreasonably interfere with the 
blockading force; and 

• otherwise to freely navigate its 
ships in the area of the blockade. 



266 



I w<> major factors which charac- 
tcrizcd warfare over liic lir>i hall <>l this 
ecu In r) have rendered literal adherence 

(o lIlCSl! (let. tiled rules difficult, it not 

impossible, to achieve. Iir>t, ihe scope 
ol ohjec lives sought by stales al war 
expanded dramatically over what it had 
been in the \ ( h\\ century. And secondly, 
the* dramatic advances in technology 
during these years geometrically in- 
creased each country's ahililv to pursue 
its national objectives. World Wars I and 
II illustrated beyond doubt, il ever there; 
was a doubt, that the amount of force 
which a stale will employ in warfare 
varies in direct proportion to the scope, 
of the objective sought to be achieved. 

It should have surprised no one that 
when the conflict objective reached the 
point of "unconditional surrender"— or, 
if you wish, ol national survival- that 
the scales which seek to regulate con- 
flict would be weighted most heavily on 
the side of military necessity. Considera- 
tions of hurnanitarianism, whether we 
like il or not, simply look a back seal. 
Thus, history would seem lo suggest 
that states will accept fewer and fewer 
restraints in the form ol law as their 
national objectives become more signili- 
cant to them. 

1 think this can be illustrated quite 
well by the actions ol all belligerents al 
sea during World Wars ! and II, ior in 
each of these conflicts both sides 
adopted a type of maritime interdiction 
which they felt was essential in a war ol 
total dimensions, where not only the 
military 1ml the economic base ol tin; 
enemy became a legitimate military 
objective. These; measures involved 
closing and patrolling large; areas of the 
high seas, hundreds of miles from the 
enemy's coastline, with a view toward 
prohibiting all maritime intercourse 
with the enemy. 

In practice the Germans even sank 
neutral ships, without warning, by the 
use of unrestricted submarine warlarc. 
British, and later United Stales, block- 
ades of Germany were* enforced by 



large-scale war /.ones, through which 

transit by an enemy or a neutral ship 

was made' extremely hazardous by the* 

u><- ol mines ami submarine's. The'se- 

policies represented maje)r departures 
from the traditional law in that they 
utilized extensive restriction of ace;e i ss to 
neutral ports and subjected ships at- 
tempting to breach the blockade te> 
destruction without warning rattier than 
lo capture and condemnation in prize. 
In sum, the; maritime' interdiction prac- 
tices eluring WW 1 and WW II meant 
almost total control of, instead of mini- 
mal interference with, neutral com- 
ment;. 

The' WW 11 experience illustrates that 
in a con (lict situation whe;re the objec- 
tives of the; participants are very broad, 
the; commitment to sucb objectives may 
force' participants to re;cast traditional 
rules of naval warfare le> allow the; 
exe;reise; of that degree of force dee;me;d 
essential. 

An excellent example of this point is 
the' submarine;. The; impact of its capa- 
bilities should have been apparent dur- 
ing the First World War. After its early 
use' against surlae-.e' warships, Germany 
turned her submarines primarily against 
merchant shipping, sinking more than 
I I million tons of Allied and neutral 
shipping. Ye't e;fforts between the; wars, 
aimed at establishing rules for the use of 
the submarine, ignored the technology 
of the; new weapon. Alle;r unsuccesslul 
attempts to ban use of the submarine 
entirely, rules were codifie;d as "interna- 
tional law' 1 with respect lo the; sub- 
marine' in the; London Naval Treaty e>l 
1930 which provided: 

In their action with rcgarel lo 
merchant ships, submarines must 
conform to the rules of interna- 
tional law to which surface vessels 
arc subject. 

In particular, except in cases of 
persistent refusal to stop on being 
duly summoned, or of active resis- 
tance to visit and search, a war- 
ship, whether surface vessel or 



267 



submarine, may not sink or render 
incapable of navigation a merchant 
vessel without having first placed 
passengers, crew, and ship's papers 
in a place of safety. For this 
purpose the ship's boats arc not 
regarded as a place of safety un- 
less the safety of the passengers 
and crew is assured, in the existing 
sea, and weather conditions, by 
the proximity of land or the 
presence of another vessel which 
is in a position to take them on 
board. 

These provisions were reaffirmed ver- 
batim in tin; London Protocol of 1936 
and thereafter were acceded to by 48 
states. All of the naval powers, including 
Germany, were bound by these rules at 
the outset of WW 11. Clearly these 
provisions ignored the submarine's pri- 
mary technological asset as a clandes- 
tine, surprise weapons system, and con- 
sequently they were bound to be ig- 
nored. Submarines were unable to com- 
ply with these rules without sacrificing 
their primary capabilities as a naval 
weapon. The all-encompassing con- 
straints of these rules, dialled without 
consideration for the unique technologi- 
cal characteristics of the submarine and 
applied to a conllict situation which 
sought to forcefully obtain tin; broadest 
political objectives, virtually insured 
that they would not be followed. In 
point of fact, the probability of success- 
fully obtaining adherence to other than 
the most general conflict rules in an 
environment of total war is almost nil. 
Toward the close of WW 11, however, 
a new factor was inserted into the 
equation with the development of 
atomic weapons. Total war, or the 
objective of reducing one's enemy to 
total submission, can well be a course of 
action which results in mutual annihila- 
tion. It appears to me that our techno- 
logical achievements have placed some 
practical limit on the scope of objectives 
which can be sought through the use of 
force. Having more limited objectives 



permits the imposition and acceptance 
of more restraints. Hence, contem- 
porary practice since WW II has tended 
to blur traditional concepts of belliger- 
ent and neutral rights and duties. States 
have not formally insisted on "belliger- 
ent" rights and, accordingly, those 
states not parties to conflicts have not 
had occasion to insist on "neutral" 
rights. 

In contrast with the experiences of 
World Wars I and II and as an illustra- 
tion of the type of conllict. in which 
participants more readily accept re- 
straints in the form of law, 1 think we 
can refer just briefly to the experience 
in Vietnam. 

When contrasted to the experiences 
of World Wars I and II, the Vietnam 
affair provides some useful insights— in 
the form of law— of the restraints the 
participants will accept in today's con- 
llict situations. Regardless of the classic 
definition of war accepted by interna- 
tional law, there is no doubt that 
Vietnam has been a conllict of major 
proportions. Yet the objectives have 
always been limited, and thus we have 
witnessed the exercise of significant 
restraint. Submarines have not been 
utilized, and no blockade or minefields 
have been established around cither 
North or South Vietnam. In short, the 
Vietnam conflict has not resulted in the 
parties exercising those powers at sea 
which would be expected if the conllict 
were traditionally categorized as a war. 
Obviously, the situation in Vietnam has 
not been, and is not now, a time of 
peace. Yet that conflict has been fought 
in the maritime environment according 
to rules, primarily the peacetime rules 
set forth in the 1958 Geneva Conven- 
tions on the Law of the Sea. 

Operation Market Time is an excel- 
lent example. The peacetime rule re- 
lating to the territorial sea holds that 
such waters are subject to the exclusive 
sovereignty of the coastal state. This has 
but one exception, and that is the right 
of foreign vessels to engage in innocent 



208 



I».i--.i_:i through llic territorial sea ol .1 
coastal stale. The Geneva Convcnlion 
on the Perrilorial Sea and tin* Con- 
tiguous /one states Ui.il "Passage is 
innoeenl so long as ii is nol unjudicial 

Ul the peace, good order or security ol 

the coastal state. Sou ill Vietnam, in iis 
1965 decree on sea surveillance, served 

iioii«r that its .'{-mile territorial sea was 
going to l)e vigorousl) patrolled ami 
that vessels ol any country "nol clearly 
engaged in innocent passage arc subject 
to visit and search and may he subject 
to ;irrest and disposition ... in con- 
lormils with accepted principles ol in- 
ternational law/ 1 It thereafter listed the 
ivpe ol cargoes -war goods— which 
would be considered suspect. Therefore, 
within tin" 3-milc hand of territorial 
water-, peacetime rules were found to 
he adequate to deal with the threat 
posed. 

International law also, in the form of 
this same 1 958 convention, provides for 
the exercise ol some degree of control 
in tin' contiguous /one which can ex- 
lend a total ol 12 miles from the 
baseline from which the territorial sea is 
measured. Within this 9-mile hand ol 
waters contiguous to the South Vietna- 
mese territorial sea, the peacetime rules 
provide' that "the coastal stale may 
exercise that degree ol control necessary 
to prevent infringement of its customs, 
fiscal, immigration, or sanitation regula- 
tions committed within its territory or 
territorial sea." South Vietnam accord- 
ingly provided that all vessels within ils 
contiguous /.one were subject to visit 
and search, and arrest where appropri- 
ate, lor violation ol any ol the above 
regulations. It further provided that tin; 
entry ol any person or goods through 
other than recognized ports was for- 
bidden 1»\ South Vietnamese customs 
and immigration regulations and that 
these regulations wen- going to be 
-Iriellv enforced. hus, through sole 
reliance on the peacetime convention on 
the territorial sea and the contiguous 
zone. South Vietnam has hc.cn able to 



control virtually all threats that occur 

within 1 2 miles ol land. 

One possible situation remains un- 
controlled under the 1 965 decree. That 
is the situation where a North Vietna- 
mese vessel, which is known hy the 
South Vietnamese to he a North Vietna- 
mese vessel, is outside tin; 12-milc /one 
and obviously carrying weapons to be 
used hy the Viclcoilg against the South 
Vietnamese Government. Neither the 
decree nor the 1958 Geneva Conven- 
tions cover this type of situation. There 
is precedent, however, in current inter- 
national law lor South Vietnam to act 
against such a vessel should it become 
necessary. 

I refer to the basic right of every 
state to lake such actions at sea as are 
reasonable and necessary to protect ils 
security interest against the hostile acts 
of other states. The old case of the 
U.S.-flag ship Virginius is frequently 
cited in support of this proposition. 
This ship was seized by the Spanish 
authorities in 1873 while it was in the; 
process of transporting arms to Cuban 
insurgents. The British ship Dccrhound 
was seized hy Spanish warships during 
the Spanish Civil War for the same 
reasons, and during the Algerian war, 
Irench warships slopped at least two 
ships— one a British and one a Yugoslav, 
both of which were suspected of the 
same offense. Although it has not been 
considered necessary, I believe that 
lhcs<; cases could be used as precedent 
for South Vietnam to seize a foreign 
vessel on llic high seas which immedi- 
ately threatens their security during this 
period of instability. 

I do not suppose one should discuss 
the rules relating to the; use of force at 
sea in a situation short of war without 
mentioning briefly the Cuban quaran- 
tine of October/November 1962. 
Briefly, the quarantine action involved 
tin; declaration of certain areas of the 
high seas adjacent to Cuba in which all 
shipping suspected of being bound for 
Cuban ports and of carrying certain 



269 



designated contraband goods would be 
subjected to visit and search. Slii[>s 
found to he carrying prohibited goods 
and bound for Cuba would be diverted 
from their intended port. A clearance 
certificate procedure was establisbed 
under which a ship at its port of 
departure could be certified as innocent 
and thus would be permitted to pass 
through the quarantine /one uninter- 
rupted. 

The quarantine differed from a 
blockade in that it: 

• sought to ban only certain items 
of contraband goods, rather than all 
maritime intercourse; 

• used as methods of enforcement 
only visit, search, and diversion and did 
not employ destruction without warn- 
ing; 

• sought to avoid the consequences 

of a formal state of war. 

The quarantine actually bore a very 
close relationship to the old law of 
contraband, under which belligerents 
claimed the right to prohibit the inflow 
of certain strategic goods into enemy 
ports. 

There was obvious and clear inter- 
ference with the peacetime rights of the 
Soviet Union and of Cuba to trade with 
whomsoever they pleased and to utilize 
the seas for this purpose. As 1 indicated 
earlier, we have seen this type of inter- 
ference in modern limes only in those 
cases where the objectives are of the 
highest order. Such was the case in 
Cuba, of course. The stationing of nu- 
clear missiles a scant 90 miles from our 
shores was considered such a threat that 
we were willing to risk a broadening of 
our dispute with Cuba, even to the 
point of involving open conflict, if 
necessary, with the Soviet Union. 

I think these two illustrations 
demonstrate rather clearly that the basic 
policy ingredients which underlay the 
traditional laws of naval warfare con- 
tinue to be operative today. This is true 
even though we do not have the classic 



requirement of an actual state of war or 
belligerency. 

The basic ingredient, as 1 have noted 
earlier, was a political need to limit the 
conflict both as to area and as to 
participants, and I think it is clear that 
the great bulk of the rules which we call 
rules of naval warfare really involve this 
limitation and with it the belligerent 
neutral relationship. The same con- 
siderations which gave rise to the tradi- 
tional laws of neutrality, particularly as 
they relate to sea warfare, continue to 
be given heed by policymakers today in 
situations short of war. 

The major political consideration in a 
2()lh century limited war is the same as 
it was in the 17th and 18th centuries— 
the need to limit the conllict, to keep it 
from unnecessarily spilling over to 
affect non participants. This has meant, 
in Vietnam for example, that we do not 
interfere with commerce into North 
Vietnam, even though that commerce 
has been essential to their conduct ol 
hostilities. 

We have not insisted on belligerent 
rights at sea because to do so would 
involve other major powers and broaden 
the scope of the conllict. 

On the other hand, the Cuban situa- 
tion illustrates that when; the circum- 
stances arc right, a state will insist, even 
in a peacetime situation, to what was 
traditionally known as a belligerent 
right. The question today really is not a 
purely legal one, and it never really was. 

The rules are merely a reflection of 
the political realities. Under the old law, 
if one wished to exercise belligerent 
rights at sea, particularly as these rights 
came to be exercised in World Wars I 
and II, one had to assume the risk of 
broadening the conllict, of making 
enemies out of neutrals. The same is 
hue today. II a stale wishes to utilize 
force al sea, other than directly against 
his adversary, he must run the risk of 
bringing olhcrs into the hostilities. 

Kxcept in cases like the 1962 missile 
crisis, where the national security is 



1270 



thn ,il< n< il. 1 1 m - potential risk i> |ii^l loo 

_m .ii lodav Ifi .1 Blale if claim belliger- 

Clll rights. 

\\ licit! (It»r- .ill till- l< 5UVC U8? W 1 1 ■ l< - .ll 

one lime I was read) lo criticize rather 
m\iivI\ the war/pcaec ilicliolomy, m\ 
\iru- ol laic have luni influenced l>\ 

what I B6C afl a Commendable stability 
in relations between >tate> which thai 
dichotomy forces upon us. The reason 
lor this, ol course, is the political 

realities which underlie that separa- 
tion. 

rhese questions ha\e been the siii*- 
jeet ol considerable stud) lor some lime 

now. These ellorls are aimed at lr\in<j; 
lo determine whether there should he a 



broad program lor preparing additional 
guidelines lor IISC h\ naval lorees in 
situations short ol war. So I will t lose 
h\ pimply I >osin^ that question to you. 
I> tlie curreiil war/peace diehotomy, 
and its rule^ lor Mm regulation ol 
con diet at sea, satisfactory lor the 
contemporary environment? Or do 
naval commanders need something new 
to guide them in situations short ol 
war? I suppose what I am really asking 
i>, "Are our present peacetime rules 
adequate? 1 

Now that I have raised the question, 
perhaps some ol you would like to 
suggest some answers which could he ol 
assistance to us. 



t 



271 



MINE WARFARE AND INTERNATIONAL LAW 



Howard S. Levie 



... As they were slowly passing the 
Brooklyn, her Captain reported "a 
heavy line of torpedoes [mines] across 
the channel." 

"Damn the torpedoes!" was the 
emphatic reply of Farragut. "Jouett, 
full speed! Four bells, Captain Dray- 
ton." 

Parker, the Battle of 
Mobile Bay, p. 29 (1878) 

Some naval historians trace the in- 
vention of the mine (or, as it was once 
called, the torpedo) back to 1585 with 
Gianibelli's attempt to destroy the 
bridge which the Spanish had con- 
structed across the Scheldt, blocking 
Antwerp from access to the sea. 1 Others 
may more accurately place this event 
with the American Revolution when a 
direct forbear of the mine, devised by 
David Bushnell, was used against the 
British. It was then called the "Ameri- 
can Turtle" and was apparently just 



about as effective an instrument of war 
as its namesake. Fulton improved the 
mine and attempted, without much 
success, to interest first France and then 
England in its manufacture and use in 
the war in which those two countries 
were then engaged. 3 The Earl of St. 
Vincent, First Sea Lord during that 
particular period of the Napoleonic 
Wars, is said to have criticized Pitt, the 
Prime Minister, for displaying interest in 
the potentialities of the mine, with 
these words: "Pitt is the greatest fool 
that ever existed, to encourage a mode 
of war which they who commanded the 
seas did not want, and which, if success- 
ful, would deprive them of it." 4 As we 
shall see, Lord St. Vincent's position 
was that of the British Government 
when the question of placing inter- 
national restrictions on the use of mines 
arose a century later. 



272 



The first really effective use of mines 
in warfare occurred during the Ameri- 
can Civil War when the Confederacy 
demonstrated the value of this form of 
warfare in fighting an opponent with a 
far superior navy. 5 They were next used 
extensively in the Spanish-American 
War (1898). 6 In this conflict, where 
Dewey disregarded the mines at Manila 
but Sampson permitted them to curtail 
his operations at Santiago, one of the 
first of the major legal problems arising 
out of the use of mines occurred- the 
question of the purposes for which they 
might be used. Early in the war the 
rumor spread that the United States 
proposed to lay mines all along the 
blockaded coast of Cuba. Neutral na- 
tions considered that this would be a 
violation of the international law of 
blockade, 7 as set forth in the Declara- 
tion of Paris of 1856. 8 Whether or not 
it had intended to do so, the United 
States did not lay mines along the 
Cuban coast. The complete destruction 
of the Spanish Fleet on 3 July 1898, at 
the Battle of Santiago, made any such 
action unnecessary. 

During the Russo-Japanese War 
(1904-1905), mines were used exten- 
sively by both sides, and this usage 
created a situation which gave rise to 
another legal problem, the question of 
the types of mines which might be used. 
Many of the mines used were either 
unanchored or easily broke loose from 
their moorings and remained armed- 
floating down the coast and out to sea 
where they played havoc with neutral 
shipping, 9 particularly that of the Chi- 
nese, 1 ° long after the hostilities had 
ceased. 

Experiences in the Russo-Japanese 
War had thus demonstrated that mines 
were dangerous not only to the enemy 
against whom they were used, but also 
to neutrals and, not infrequently, to the 
minelayer itself! Accordingly, the pro- 
posed agenda circulated by the Russian 
Government prior to the 1907 Hague 
Peace Conference included an item en- 



titled, "the laying of torpedoes." 1 ' The 
search for a solution to the problem of 
mine warfare was referred by the Con- 
ference to its Third Commission which, 
in turn, referred the problem to a 
Committee of Examination. The report 
of that committee is quite illuminating. 
It said, in part: 

. . . [W]e must take into ac- 
count the incontestable fact that 
submarine mines are a means of 
warfare the absolute prohibition 
of which can neither be hoped for 
nor perhaps desired even in the 
interest of peace; they are, above 
all, a means of defence, not costly 
but very effective, extremely use- 
ful to protect extended coasts, 
and adapted to saving the con- 
siderable expense that the main- 
tenance of great navies re- 
quires. . . . Now to ask an absolute 
prohibition of this weapon would 
consequently be demanding the 
impossible; it is necessary to con- 
fine ourselves to regulating its 



use. 



1 2 



The controversies with respect to 
mine warfare which arose during the 
Conference in the course of the drafting 
of the convention, which was destined 
to become 1907 Hague VIII, 13 clearly 
revealed the wide differences of opinion 
which existed between the major naval 
powers of the world of that day. At the 
risk of over-simplification, it may be 
said that the problems to be solved with 
respect to mine warfare fell into three 
general categories: (1) the types of 
mines which might lawfully be used; (2) 
the purposes for which mines might 
lawfully be used; and (3) the places 
where mines might lawfully be used. 14 
It is of interest to examine the nature of 
each of these problems and the manner 
in which they were solved, or pur- 
portedly solved. 

With respect to types of mines, it is 
important to recall that at the time that 
the Conference met in The Hague in 
1907 there were only two categories of 



273 



mines in existence, and it is apparent 
that little thought was given to the 
possibility of improved technology and 
development of new types of mines. 1 5 
The two types then in existence were 
the electrically controlled and the auto- 
matic submarine contact mines. 16 The 
former were used for close-in protection 
of bays, harbors, river mouths, etcetera. 
They were directly controlled from a 
shore facility, being detonated from the 
controlling station when enemy vessels 
were detected within the minefields. 
This type of mine was comparatively 
noncontroversial. The automatic sub- 
marine contact mine, on the other hand, 
was out of the control of the minelayer 
as soon as it was laid. It detonated on 
contact, and was either unanchored or, 
if anchored, could easily break loose 
from its moorings and was then equally 
dangerous to the minelayer, to the 
enemy, and to neutrals. It is this type of 
mine which had caused such widespread 
destruction after the Russo-Japanese 
War, a conflict which ended just 2 years 
before the 1907 Conference met. 

Early in the Conference the British 
Delegation tabled a complete proposal 
in which the first two paragraphs would 
have flatly prohibited the use of un- 
anchored automatic submarine contact 
mines, as well as prohibitin